Du Preez v Chelden - [2020] ICQ 8

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Du Preez v Chelden [2020] ICQ 008

PARTIES:

KATHERINE EVELYN DU PREEZ (COMMISSIONER FOR MINE SAFETY AND HEALTH)

(appellant)

v
CHELDEN PTY LTD
ACN 071 477 891

(respondent)

FILE NO/S:

C/2018/18
C/2019/5

PARTIES:

KATHERINE EVELYN DU PREEZ (COMMISSIONER FOR MINE SAFETY AND HEALTH)

(appellant)

v

MOUNT ISA MINES LTD
ACN 009 661 447

(respondent)

FILE NO/S:

C/2018/19
C/2018/28

PROCEEDING:

Appeal

DELIVERED ON:

15 June 2020

HEARING DATE:

20 April 2020

MEMBER:

Martin J, President

ORDER/S:

The application for leave to appeal is struck out.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – WHO MAY APPEAL – where the defendants were prosecuted for alleged breaches of the Mining and Quarrying Safety and Health Act 1999 – where the Industrial Magistrate dismissed the charges and acquitted the defendants – where the prosecutor applied to appeal from those decisions and sought orders that the Industrial Magistrate’s decision be set aside and that each respondent be found guilty on all charges – whether the relevant legislation allows for a prosecutor to appeal against the acquittals entered

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – LEGISLATIVE HISTORY OF ACT – where the appeal provision in the relevant industrial legislation at the time that the Mining and Quarrying Safety and Health Act 1999 was enacted, the Workplace Relations Act 1997, provided that “a person dissatisfied with a decision” may appeal – where the industrial legislation was subsequently repealed and replaced twice – where the appeal provision in the current industrial legislation, the Industrial Relations Act 2016, provided that “a person aggrieved by a decision” may appeal – where s 234(3) of the Mining and Quarrying Safety and Health Act 1999 provided that “a person dissatisfied with a decision of an industrial magistrate… who wants to appeal must appeal to the Industrial Court” – where s 234(4) of the Mining and Quarrying Safety and Health Act 1999 provided that the Industrial Relations Act 2016 applied “with necessary changes” – whether the general principle, that “a person aggrieved by a decision of an industrial magistrate” does not include the prosecution, is displaced by s 234(3) of the Mining and Quarrying Safety and Health Act 1999

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PRESUMPTIONS AS TO LEGISLATIVE INTENTION – NOT TO INVADE PERSONAL COMMON LAW RIGHTS – where the prosecutor sought to appeal from the decision of the Industrial Magistrate to acquit the defendants on all charges – whether the legislation intended to abrogate the common law principle that an acquittal cannot be questioned in another court

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – COMPATIBILITY WITH HUMAN RIGHTS LEGISLATION – where the proceedings commenced before the commencement of the Human Rights Act 2019 – whether the Human Rights Act 2019 applies to these proceedings

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – CONSIDERATION OF EXTRINSIC MATTERS – INTERNATIONAL CONVENTIONS, TREATIES OR AGREEMENTS – where the respondent submitted…

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 Du Preez v Chelden

Details

AGLC: Du Preez v Chelden [2020] ICQ 8
Case: [2020] ICQ 8
Decision Date: 15 June 2020

CaseChat Overview and Summary

The appeal in Du Preez v Chelden was brought by the prosecutor against the acquittals entered by an Industrial Magistrate for the defendants, Chelden and MIM, who were charged with breaches of the Mining and Quarrying Safety and Health Act 1999. The central legal issue was whether the prosecutor had the right to appeal the Industrial Magistrate's decision to acquit the defendants under the relevant legislation. The Industrial Magistrate had dismissed the charges against the defendants, and the prosecutor sought to appeal this decision, arguing for the defendants to be found guilty on all charges.

The court examined the statutory provisions regarding appeals from industrial magistrate decisions, particularly under the Mining and Quarrying Safety and Health Act 1999 and the Industrial Relations Act 2016. Initially, the Workplace Relations Act 1997 allowed a "person dissatisfied" with a magistrate's decision to appeal, a phrase that was later replaced by "a person aggrieved" in the Industrial Relations Act 2016. The court also considered whether this change in terminology affected the prosecutor's ability to appeal acquittals. Furthermore, the court explored whether the legislative history and the common law principle that an acquittal cannot be questioned in another court were relevant to the appeal.

The court concluded that the statutory changes did not alter the general principle that an appeal from an acquittal is not available to the prosecution. The court found that the term "a person aggrieved" in the Industrial Relations Act 2016 was not intended to extend to the prosecutor appealing an acquittal. This interpretation was consistent with the common law principle that an acquittal should not be subject to further judicial scrutiny. Additionally, the court determined that the appeal provisions did not abrogate the common law principle that an acquittal cannot be questioned in another court. The Human Rights Act 2019, which came into effect after the proceedings began, did not apply to these proceedings.

The court dismissed the prosecutor's appeal, upholding the Industrial Magistrate's decision to acquit the defendants. Consequently, the defendants were not found guilty on any of the charges brought against them.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

After the application to appeal was heard, the parties were invited to make such submissions as they wished with respect to the nature of the appeal and whether the relevant legislation allowed for a prosecutor to appeal against the acquittals entered for the defendants. The respondents to the appeal (Chelden and MIM – referred to in these reasons as the defendants) contend that the legislation does not allow for an appeal from an acquittal and apply for an order dismissing the appeal.[1] These reasons deal with that issue.[1]Each applicant adopted the other’s submissions.The legislative background Section 31 of the MQSH Act provides:“A person on whom a safety and health obligation is imposed must discharge the obligation.…” The section then goes on to provide for the maximum penalties which may be imposed depending upon the consequence of the failure to discharge the obligation. At the time, the maximum penalty was 1,000 penalty units or 2 years imprisonment. Section 569 of the Industrial Relations Act 2016 (IR Act) relevantly provides:“569 Where offence proceedings are to be heard and decided (1) Proceedings for an offence against this Act are to be heard and decided by the court or a magistrate, within the limits of the court’s or magistrate’s jurisdiction. (2) Proceedings before a magistrate are to be heard and decided summarily under the Justices Act 1886, but the Industrial Magistrates Court where the proceedings are started must be constituted by a magistrate sitting alone....” Section 234 of the MQSH Act provides:“234Proceedings for offences(1)A prosecution for an offence against this Act is by way of summary proceedings before an industrial magistrate.(2)More than 1 contravention of a safety and health obligation under section 31 may be charged as a single charge if the acts or omissions giving rise to the claimed contravention happened within the same period and in relation to the same mine.(3)A person dissatisfied with a decision of an industrial magistrate in proceedings brought under subsection (1) who wants to appeal must appeal to the Industrial Court.(4)The Industrial Relations Act 2016 applies, with necessary changes, to a proceeding before an industrial magistrate brought under subsection (1) and to a proceeding on appeal before the Industrial Court brought under subsection (3).(5)Proceedings for an offence against this Act may only be taken by—(a) the commissioner; or(b) the chief executive; or(c) another appropriately qualified person, with the written authorisation of the chief executive, either generally or in a particular case.(6)An authorisation under subsection (5)(c) is sufficient authority to continue proceedings in any case where the court amends the charge, warrant or summons.(7)In this section—person dissatisfied with a decision in a proceeding means—(a) a party to the proceeding; or(b) a person bound by the decision.” (emphasis added) The word “decision” is not defined in the MQSH Act.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

So far as it is relevant, “decision” is defined in the IR Act in this way:[2]“decision means—(a)a decision of the court, the commission, a magistrate or the registrar; or…”[2]Industrial Relations Act 2016 sch 5 (definition of “decision”). On such an appeal, the powers of this court are set out in s 558:“558 What court may do(1)On an appeal under section 556 or 557, the court may—(a) dismiss the appeal; or(b) allow the appeal, set aside the decision and substitute another decision; or(c) allow the appeal and amend the decision; or(d) allow the appeal, suspend the operation of the decision and remit the matter, with or without directions, to the commission or an Industrial Magistrates Court to act according to law.…”The history of these provisions When the MQSH Act was enacted in 1999 the relevant industrial legislation was the Workplace Relations Act 1997. Section 234(4) of the MQSH Act referred to it. The Workplace Relations Act relevantly provided:“Appeal from commission, magistrate or registrar to court360.…(3)A person dissatisfied with a decision of a magistrate exercising jurisdiction conferred under section 310 in relation to—(a) the matters stated in section 310(2)(a) or (c); or(b) the powers provided for in section 435;may appeal to the court.(4)The court may—(a) dismiss the appeal; or(b) allow the appeal and—(i)set aside the decision appealed against and substitute the decision it considers should have been made; or(ii)amend, as it considers appropriate, the decision appealed against; or(iii)suspend the operation of the decision appealed against and remit the industrial cause, with or without directions, to the commission, an Industrial Magistrates Court or the registrar to act according to law.Court may vary penalty on appeal361. If the court, on appeal, confirms a person’s conviction for an offence, it may increase or reduce the penalty imposed on the person for the offence.” (emphasis added) The Workplace Relations Act was repealed and replaced by the Industrial Relations Act 1999 and s 234 of the MQSH Act was amended to reflect that. The relevant section of the Industrial Relations Act 1999 was:“341 Appeal from the commission, magistrate or registrar…(2)A person may appeal to the court if dissatisfied with a decision of a magistrate in relation to a matter for which the magistrate has jurisdiction. (3)The court may— (a) dismiss the appeal; or (b) allow the appeal, set aside the decision and substitute another decision; or (c) allow the appeal and amend the decision; or (d) allow the appeal, suspend the operation of the decision and remit the industrial cause, with or without directions, to the commission, an Industrial Magistrates Court or the registrar to act according to law.…” (emphasis added) When the Industrial Relations Act 1999 was repealed, its replacement, the IR Act, replaced the requirement that an appellant be a “person dissatisfied” with the requirement that it be a “person aggrieved”. Fundamental principles concerning appeals from acquittals

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Du Preez v Chelden [2020] ICQ 008
PARTIES:	KATHERINE EVELYN DU PREEZ (COMMISSIONER FOR MINE SAFETY AND HEALTH) (appellant) v CHELDEN PTY LTD ACN 071 477 891 (respondent)
FILE NO/S:	C/2018/18 C/2019/5
PARTIES:	KATHERINE EVELYN DU PREEZ (COMMISSIONER FOR MINE SAFETY AND HEALTH) (appellant) v MOUNT ISA MINES LTD ACN 009 661 447 (respondent)
FILE NO/S:	C/2018/19 C/2018/28
PROCEEDING:	Appeal
DELIVERED ON:	15 June 2020
HEARING DATE:	20 April 2020
MEMBER:	Martin J, President
ORDER/S:	The application for leave to appeal is struck out.
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – WHO MAY APPEAL – where the defendants were prosecuted for alleged breaches of the Mining and Quarrying Safety and Health Act 1999 – where the Industrial Magistrate dismissed the charges and acquitted the defendants – where the prosecutor applied to appeal from those decisions and sought orders that the Industrial Magistrate’s decision be set aside and that each respondent be found guilty on all charges – whether the relevant legislation allows for a prosecutor to appeal against the acquittals entered STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – LEGISLATIVE HISTORY OF ACT – where the appeal provision in the relevant industrial legislation at the time that the Mining and Quarrying Safety and Health Act 1999 was enacted, the Workplace Relations Act 1997, provided that “a person dissatisfied with a decision” may appeal – where the industrial legislation was subsequently repealed and replaced twice – where the appeal provision in the current industrial legislation, the Industrial Relations Act 2016, provided that “a person aggrieved by a decision” may appeal – where s 234(3) of the Mining and Quarrying Safety and Health Act 1999 provided that “a person dissatisfied with a decision of an industrial magistrate… who wants to appeal must appeal to the Industrial Court” – where s 234(4) of the Mining and Quarrying Safety and Health Act 1999 provided that the Industrial Relations Act 2016 applied “with necessary changes” – whether the general principle, that “a person aggrieved by a decision of an industrial magistrate” does not include the prosecution, is displaced by s 234(3) of the Mining and Quarrying Safety and Health Act 1999 STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PRESUMPTIONS AS TO LEGISLATIVE INTENTION – NOT TO INVADE PERSONAL COMMON LAW RIGHTS – where the prosecutor sought to appeal from the decision of the Industrial Magistrate to acquit the defendants on all charges – whether the legislation intended to abrogate the common law principle that an acquittal cannot be questioned in another court STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – COMPATIBILITY WITH HUMAN RIGHTS LEGISLATION – where the proceedings commenced before the commencement of the Human Rights Act 2019 – whether the Human Rights Act 2019 applies to these proceedings STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – CONSIDERATION OF EXTRINSIC MATTERS – INTERNATIONAL CONVENTIONS, TREATIES OR AGREEMENTS – where the respondent submitted…