Daytona Trading Pty Ltd v McGarry - [2014] ICQ 21

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Daytona Trading Pty Ltd v McGarry [2014] ICQ 021

PARTIES:

DAYTONA TRADING PTY LTD
(appellant)
v
JOHN MCGARRY
(respondent)

CASE NO:

C/2014/2

PROCEEDING:

Appeal against a decision of the Industrial Magistrate

DELIVERED ON:

11 July 2014

HEARING DATE:

4 March 2014

MEMBER:

Martin J, President

ORDERS:

1. Appeal allowed in part.

2. The respondent is to provide the further and better particulars sought in the application filed on 4 July 2013 by no later than 1 August 2014.

CATCHWORDS:

MAGISTRATES – COMMENCEMENT OF PROCEEDINGS – PARTICULARS AND CONTENT OF ORIGINATING PROCESS – DESCRIPTION OF OFFENCE – GENERALLY – where the respondent laid a complaint against the appellant company, alleging breaches of electrical safety obligations – where the respondent provided particulars of the complaint, but refused a request to provide further particulars – whether the complaint and particulars met the criteria for validity set out in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 – whether the Industrial Magistrate erred in not ordering that further particulars be provided

Electrical Safety Act 2002, ss 10, 27, 30, 46
Industrial Relations Act 1999, s 341(2)

CASES:

Bell v Hendry [2014] ICQ 18, applied
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

APPEARANCES:

S T Farrell for the appellant instructed by Messrs Kaden Boriss
M J Byrne QC with T Cvetkovski for the respondent instructed by the Department of Regional Workplace Health and Safety

On 27 February 2012 Jason Garrels was electrocuted while working on a property in Clermont which was being developed for the construction of domestic residences.

On 25 February 2013 the respondent made a complaint that the appellant

“being a person on whom an electrical safety obligation prescribed by section 30 of the Electrical Safety Act 2002, was imposed did fail to discharge that obligation contrary to section 27 of the Electrical Safety Act 2002, in that being an employer the said Daytona Trading Pty Ltd did fail to ensure that its business or undertaking was conducted in a way that was electrically safe.”

The particulars of the complaint were set out in 13 paragraphs which were included in the body of the complaint. They were:

1. “DAYTONA TRADING PTY LTD was duly incorporated according to law.
2.DAYTONA TRADING PTY LTD was an employer or self employed person, more particularly, an employer.
3.DAYTONA TRADING PTY LTD conducted a business or undertaking which included the construction of residential duplex dwellings at 47 MacDonald Flat Road, Clermont, in the State of Queensland (the "site").

4. The site comprised Lots 1-81 and common property.
5. On 27th February 2012, DAYTONA TRADING PTY LTD in the course of its business or undertaking caused to be provided a supply of electricity to the site, to allow for construction work to be undertaken; in particular at Lot 51…

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: [2014] ICQ 21
Decision Date: 11 July 2014

CaseChat Overview and Summary

Daytona Trading Pty Ltd, an electrical contractor, was summoned by the respondent, the Chief Inspector of the Electrical Safety Office, to answer to allegations of breaches in electrical safety obligations. The Chief Inspector filed a complaint against Daytona, but when Daytona sought further information about the nature of the breaches, the Chief Inspector declined to provide it. Daytona argued that this refusal rendered the complaint invalid, and appealed to the court. The appeal was heard by the Industrial Relations Commission of New South Wales.

The central legal issue was whether the complaint and particulars provided by the Chief Inspector met the validity criteria outlined in Kirk v Industrial Court of New South Wales. Daytona contended that the refusal to provide additional information rendered the complaint invalid. The court had to determine if the Industrial Magistrate erred in not ordering the Chief Inspector to provide further particulars.

The court found that the Industrial Magistrate erred in not ordering the Chief Inspector to provide further particulars. The court determined that the particulars provided by the Chief Inspector were insufficient to meet the criteria for validity as set out in Kirk. The court found that the refusal to provide additional information undermined the fairness of the proceedings and the ability of Daytona to adequately defend itself. The appeal was allowed in part, and the court mandated that the Chief Inspector provide further and better particulars by a specified deadline.

The court's final order was that the appeal was allowed in part, and the respondent was to provide the further and better particulars sought by the appellant by no later than 1 August 2014. This decision highlighted the importance of ensuring that complaints and particulars are sufficiently detailed to meet legal criteria, to maintain fairness and procedural integrity in regulatory proceedings.

Orders

Orders of the court

1. Appeal allowed in part.

2. The respondent is to provide the further and better particulars sought in the application filed on 4 July 2013 by no later than 1 August 2014.

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:	Daytona Trading Pty Ltd v McGarry [2014] ICQ 021
PARTIES:	DAYTONA TRADING PTY LTD (appellant) v JOHN MCGARRY (respondent)
CASE NO:	C/2014/2
PROCEEDING:	Appeal against a decision of the Industrial Magistrate
DELIVERED ON:	11 July 2014
HEARING DATE:	4 March 2014
MEMBER:	Martin J, President
ORDERS:	1. Appeal allowed in part. 2. The respondent is to provide the further and better particulars sought in the application filed on 4 July 2013 by no later than 1 August 2014.
CATCHWORDS:	MAGISTRATES – COMMENCEMENT OF PROCEEDINGS – PARTICULARS AND CONTENT OF ORIGINATING PROCESS – DESCRIPTION OF OFFENCE – GENERALLY – where the respondent laid a complaint against the appellant company, alleging breaches of electrical safety obligations – where the respondent provided particulars of the complaint, but refused a request to provide further particulars – whether the complaint and particulars met the criteria for validity set out in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 – whether the Industrial Magistrate erred in not ordering that further particulars be provided Electrical Safety Act 2002, ss 10, 27, 30, 46 Industrial Relations Act 1999, s 341(2)
CASES:	Bell v Hendry [2014] ICQ 18, applied 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
APPEARANCES:	S T Farrell for the appellant instructed by Messrs Kaden Boriss M J Byrne QC with T Cvetkovski for the respondent instructed by the Department of Regional Workplace Health and Safety