Howard Henry Stevenson v Richard Evans Hardy, Industrial Magistrate and Phillip Ronald Smith No. SCGRG 94/401 Judgment No. 4809 Number of Pages 11 Constitutional Law Industrial Law

[1994] SASC 4809

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA KING CJ(1), BOLLEN(2) and DEBELLE(3) JJ

CWDS
Constitutional law - operation and effect of the Commonwealth Constitution - inconsistency of laws - Federal industrial award (Vehicle Industry OccupatiOnal Health and Safety Award 1986) imposing duties as to occupational health and safety - whether inconsistency with s21Occupational Health Safety and Welfare Act 1986 (5A) - Clause 9 of Award defining field intended to be covered exclusively and allowing for operation of State legislation except where excluded - s21 applicable to extent not excluded by Clause 9.

Industrial law - Commonwealth - construction of Award - Vehicle Industry Occupational Health and Safety Award 1986 - Clause 9 allowing for operation of State legislation except in fields to be regulated exclusively by award - exclusive regulation of duties and obligations of employees to employers and of employees to each other - exclusivity restricted to duties and obligations of employees to other employees of same employer - s21 of Occupational Health Safety and Welfare Act 1986 (SA) applicable -to duties and obligations of employer to employee of independent contractor.

Industrial law - industrial safety, health and welfare - General Legislation - failure of employer to take care at the workplace for safety of employee of an independent contractor - charge of breach of s21Occupational Health Safety and Welfare Act 1986 (5A) - whether s21 rendered inapplicable to the facts by s109 of Commonwealth Constitution by reason of inconsistency with Vehicle Industry Occupational Health and Safety Award 1988 - applicability of s21 to the conduct charged preserved by Clause 9 of award - no inconsistency - alleged conduct amounting to offence against s21 - on Summons for Judicial Review magistrate's dismissal of complaint quashed and magistrate directed to hear and determine the complaint according to law.

HRNG ADELAIDE, 10 October 1994 #DATE 27:10:1994

Counsel for plaintiff:         Mr B M Selway with Mr M W Ahern

Solicitors for plaintiff:     Crown Solicitor

Counsel for R Hardy, IM:     No attendance

Counsel for defendant Smith:    Mr S Walsh QC with Mr R Bonig

Solicitors for defendant Smith: Fountain and Bonig

ORDER
Order by way of judicial review, quashing the decision and order of the learned magistrate that he had no jurisdiction to hear and determine the Complaint and directing him to hear and determine the Complaint according to law.

JUDGE1 KING CJ The plaintiff, an officer of the South Australian Department of Industrial Affairs, instituted a prosecution by way of Complaint against the second defendant. The charge in the Complaint is that the second defendant, whilst employed by General Motors Holdens Automotive Limited (GMH) at its premises at Phillip Highway Elizabeth contravened s21(1)(b) of the Occupational Health Safety and Welfare Act 1986 (SA) in that he failed to take reasonable care to avoid adversely affecting the health and safety of another named person. The Complaint came on for hearing before the first defendant, an Industrial Magistrate, in the Industrial Court of South Australia. The learned magistrate held that the existence of a federal award dealing with the same subject matter as the section of the State Act deprived the Industrial Court of jurisdiction to hear and determine the Complaint. The plaintiff seeks by way of judicial review to have that order quashed and the magistrate directed to hear and determine the Complaint.

2. At the time of the incident which is the basis of the charge, the second defendant was an employee of GMH and was engaged in work in the course of his employment at the employer's premises. The other person named in the charge was present at those premises in the course of her employment by an independent contractor.

3. Section 21 of the Act, so far as material is as follows:
    "21(1) An employee shall take reasonable care -
    (a) ...
    (b) to avoid adversely affecting the health or safety of any
    other person through any act or omission at work ..."

4. GMH and its employees are parties to the Holden's Motors Australia Limited Occupational Health and Safety Award 1988 which applies the Vehicle Industry Occupational Health and Safety Award 1986. The award was made by the Australian Industrial Relations Commission under the authority of the Industrial Relations Act (Cth) 1988.

5. Clause 9 of the 1986 award deals with the applicability of State legislation as follows:
    "9(a) The provisions of relevant State legislation shall
    apply to employers and employees covered by this Award,
    provided however that the following matters shall be
    regulated by this award to the exclusion of the provisions
    of relevant State legislation:
     (i) the duties and obligations of employers to employees
     with respect to occupational health and safety prescribed
     by this Award, to the exclusion of the general provisions
     referred to in subclause (c) hereof, but so as not to
     affect the operation of relevant State legislation not
     otherwise excluded by the provisions of this Award;
     (ii) the duties and obligations of employees to employers
     and of employees to each other with respect to
     occupational health and safety prescribed by this Award,
     to the exclusion of the general provisions referred to in
     subclause (c) hereof, but so as not to affect the
     operation of relevant State legislation not otherwise
     excluded by the provisions of this Award;
     (iii) the duties and obligations of employers to
     independent contractors and their employees with respect
     to occupational health and safety;
     (iv) to (xi) ... (irrelevant)
    ...
    (c) The general provisions referred to in paragraphs (i) and
    (ii) of subclause (a) of this clause are the provisions of
    relevant State legislation mentioned hereunder (and any
    provisions amending or replacing such provisions) to the
    extent that such provisions relate to the duties and
    obligations of employers to employees or of employees to
    employers, or of employees to each other."

6. Section 21 of the Act is stated in the Award to be one of the provisions of State legislation referred to in paragraph (c).

7. The 1986 award imposes duties on employees with respect to health and safety. Clause 19 is as follows:
    "19. An employee while at work shall:
    (a) take that care of which the employee is capable for the
    employee's own health and safety and for the health and
    safety of any other person who may be affected by the
    employee's acts or omissions at the workplace; and
    (b) observe all safety rules and instructions of the
    employer."

8. The learned magistrate held that the award covered the field of the duties of employees with respect to health and safety and that the State Act was inapplicable by virtue of s109 of the Constitution of the Commonwealth. He held that he had no jurisdiction to hear and determine the charge. I do not think that the issue is one of jurisdiction. The Complaint charged a breach of the State Act. The magistrate clearly has jurisdiction to hear and determine such a charge. If he is correct in his view of the law, it means that s21 of the Act has no application to the facts of the case. It is rendered inapplicable by the operation of s109 of the Constitution. On that view the conduct alleged would not be an offence against s21 because s21 would not apply. That would lead to the dismissal of the Complaint. There would be no lack of jurisdiction. The magistrate would have jurisdiction to hear and determine the complaint and would dismiss the Complaint in the exercise of that jurisdiction. I think that the magistrate was wrong to treat the issue as one of jurisdiction. Nevertheless the substantive question remains as to whether the award has the effect of excluding the operation of s21.

9. Before turning to that question, it is necessary to notice a procedural objection which was taken to these proceedings. The learned magistrate gave his decision orally on 9th July 1993. He indicated that he would provide "written reasons within the next day or so". They were not published until 20th January 1994. A formal order giving effect to the magistrate's decision was sealed by the Industrial Court. It was dated 20th January 1994. This Summons for judicial review was issued on 22nd March 1994.

10. Rule 98.06 of the Supreme Court Rules requires that, subject to any order of the Court, a Summons for Judicial Review be issued within six months from the date when grounds of review first arose, and in all cases be issued as promptly as possible. The Court is therefore empowered to extend the six month period. If it is necessary to have recourse to it, Rule 3.04(d) authorizes the extension of time after the time has expired.

11. Mr Selway for the plaintiff argued that the date of the formal order is the relevant date and that the Summons was issued within time. Alternatively he contended that the time should be extended. He relied upon the fact that the reasons were not delivered until after the expiration of six months from 9th July. I think that it would be unreasonable to expect the plaintiff to decide whether to seek judicial review without seeing the magistrate's reasons. If the plaintiff had issued the proceedings, the hearing could not have proceeded until the magistrate's reasons were available. There has been no indication of prejudice to the second defendant. The Court, without deciding whether the Summons was within time, granted an extension of time insofar as that might be necessary.

12. The statutory provision which gives an industrial award the same paramountcy over inconsistent State law as would be enjoyed by a law of the Commonwealth, is s152 of the Industrial Relations Act (Cth) 1988 which is as follows:
    "152. Where a State law, or an order, award, decision or
    determination of a State industrial authority, is
    inconsistent with, or deals with a matter dealt with in, an
    award, the latter prevails and the former, to the extent of
    the inconsistency or in relation to the matter dealt with,
    is invalid."

13. That section is in terms which are identical with s65 of the Conciliationand Arbitration Act 1904 (Cth), which is discussed in Metal Trades Industry Association v Amalgamated Metal Workers' and Shipwrights' Union (1983) 152 CLR
632. Mason, Brennan and Deane JJ in a joint judgment explain the effect of the section at pp648-49. They say:
    "Because it has been thought that an award made pursuant to
    the Conciliation and Arbitration Act 1904 (Cth), as amended,
    ('the Act') is not a law of the Commonwealth within the
meaning of s.109, inconsistency between an award and a State
    law must be reduced to inconsistency between the State law
    and the provision in the Act authorizing the making of the
    award so as to constitute it an exhaustive and exclusive
    regulation of the relevant subject-matter (T.A. Robinson and
Sons Pty. Ltd. v. Haylor (1957) 97 CLR 177, at p 182). In
this respect s.65 of the Act (s.30 of the Act of 1904) is of
    paramount importance for it is the expression of the
    statutory intention that the arbitrator's exercise of power
    is to operate to the exclusion of any State law.
    Unfortunately s.65, like s.109, is couched in terms which
    purport to invalidate an inconsistent State law, rather than
    in terms of a declaration that the award is to have an
    exclusive operation. Moreover, its language goes beyond the
language of s.109. This has resulted in some speculation as
    to its validity (see Collins v. Charles Marshall Pty. Ltd.
(1955) 92 CLR 529, at pp 548-549). This speculation may be
    put to one side because it has been accepted in the cases to
    which we have referred and in Ansett Transport Industries
(Operations) Pty. Ltd. v. Wardley (1980) 142 CLR 237, at
    pp 260-261, 277-280, that s.65 is to be regarded as evincing
    a statutory intention that an award made pursuant to the Act
    is to operate to the exclusion of any State law. So much is
    made evident by the inclusion in s.65 of the words not found
in s.109 which relate to the operation of a State law which
    'deals with a matter dealt with in' an award.
    The critical question then is: What is the conduct or
    matter with which the relevant awards deal? For the effect
    of s.65 is to make the provisions of the awards exclusive in
    relation to that conduct or matter and thus to make it
    inconsistent for the law of a State to govern what is dealt
    with by the awards. The section contradicts the hypothesis
    that the award provisions are intended to operate side by
    side with the provisions of a State law dealing with that
    conduct or matter."

14. At p650, they consider the operation of provisions in an award which indicate an intention not to exclude State law. They say:
    "It may appear from the terms and nature of an award, or
    from the subject-matter with which it deals, that,
    notwithstanding that it contains provisions dealing with a
    particular matter, it is not intended to deal with that
    matter to the excusion (sic) of any other law. At first
    glance there might seem to be a problem in accommodating
    such an award to the language of s.65. But in such a case
    it will be found that the award fails to deal with the
    particular conduct or matter which is regulated by the State
    statute."

15. There is no direct inconsistency between Clause 19 of the Award and s21(1) of the Act. Both can be complied with. The fact that there are different penalties does not necessarily make them inconsistent; McWaters v Day (1989) 168 CLR 289 at 296.

16. It is not necessary in this case to consider whether the Award demonstrates an intention to cover the field. The Award itself indicates the extent to which it intends to supplant State law or, to put it another way, defines the field which it intends to cover and that which it leaves to State legislation. A similar scheme established by the Insurance Act 1973 (Cth) was considered by the High Court in Palmdale-AGCI Ltd v Workers Compensation Commission of New South Wales and Another (1977) 140 CLR 236. The analysis of that legislation and its effect upon the operation of State legislation in the judgment of Mason J, with which the other judges agreed, at pp241-4, is pertinent to the present case.

17. Clause 9 of the Award expressly preserves the applicability of State legislation except as to the matters stated in the clause to be exclusively regulated by the Award. The relevant matter stated to be exclusively regulated appears in placitum (ii). That placitum is restricted to the duties of employers to employees and of employees to each other. It does not extend to duties to persons other than the employer or other employees.

18. Mr Walsh QC sought to overcome this problem by arguing that the word "employee" when used to denote the beneficiary of the duty or obligation was used in the general sense of any person in the community who is employed irrespective of the identity of the employer. This is a strained and unnatural construction. Moreover it would be lacking in any intelligible rationale. If the Award is to regulate exclusively the duties and obligations of an employee not only to his employer and fellow employees of the same employer but also to strangers to the relationship between that employee and his employer, why should the exclusivity be limited to duties and obligations to strangers who happen to be employees. If the exclusivity embraces duties and obligations to strangers there is no sense in the differentiation between strangers who are employees and those who are not.

19. A construction of placitum (ii) which restricts the exclusivity, so far as duties and responsibilities to employees are concerned, to duties and responsibilities to other employees of the same employer, is reinforced by the contrast with the language of placitum (iii). Where it was intended to regulate exclusively duties and responsibilities to independent contractors and their employees, that was expressly stated. The omission from placitum (ii) of the words "independent contractors and their employees" used in placitum (iii), is quite decisive as to the intention of placitum (ii).

20. Mr Selway reinforced his argument with the contention that if placitum (ii) sought to exclude State legislation with respect to the duties and obligations of employees to strangers to the relationship between the employees and their own employer, it would be invalid as beyond the power to make awards conferred by the Industrial Relations Act. If that argument is sound it also invalidates placitum (iii). I find it unnecessary to determine the soundness of the argument because I am satisfied that placitum (ii), according to the natural meaning of the words used and the context in which they are used, does not comprehend duties and responsibilities to persons other than the employer and other employees of the same employer.

21. The learned magistrate was much influenced by the provisions of Clause 19. That clause imposes a duty on an employee, but in view of Clause 9 does not exclude s21. The duty imposed by Clause 19 is concurrent with the duties imposed by s21 so far as s21 is permitted to operate by the terms of Clause 9. The magistrate was also influenced by the specific mention of s21 as a provision excluded by placitum (ii). That point loses its cogency, however, when it is appreciated that paragraph (c) provides that s21, and the other mentioned provisions, are excluded only to the extent that such provisions relate to matters which are described in terms which are identical with the terms used in placitum (ii). The same question of construction arises in determining under paragraph (c) whether the operation of s21 is excluded as arises in determining the same question under placitum (ii). The mention in paragraph (c) of s21 as a provision referred to in placitum (ii) therefore throws no light on the proper construction of placitum (ii).

22. Mr Walsh QC argued that, even if, on the true understanding of the legal position, s21 applies to the conduct alleged against the second defendant, relief by way of judicial review should be refused in the exercise of the Court's discretion. He stressed that GMH and the independent contractor had been prosecuted and referred to the oppressiveness of the delays which have occurred. I do not find any of these matters persuasive.

23. A matter which has given me more concern is the plaintiff's failure to avail himself of his right of appeal to the Industrial Court, pursuant to s42(2)(a) of the Magistrates Court Act. The availability of rights of appeal is usually an important, and sometimes a determining factor, in the Court's decision whether to refuse relief by way of judicial review on discretionary grounds. There are, however, considerations in this case which support the grant of relief notwithstanding the failure to make use of the right of appeal. The lack of reasons for the decision on 9th July 1993 was a serious obstacle to the making of a decision whether to appeal and the formulation of grounds of appeal at that stage. When the reasons were given and the formal order made, on 20th January 1994, there was the uncertainty whether that was the operative date from which the time for appeal could be calculated. I think that the course of seeking review of the decision by way of judicial review was in the circumstances the appropriate method of avoiding the problem of the time within which the appeal had to be instituted. The issue raised is an important issue arising under s109 of the Constitution and involving the construction and effect of a federal award. It is an appropriate matter for determination by this Court. It is a question of law in respect of which an appeal would lie to this Court from any decision on appeal by the Industrial Court. The decision does not depend upon disputed issues of fact. If there had been an appeal it is very likely that the question of law would have reached this Court by way of the appeal process. In all the circumstances I do not think that relief should be refused on discretionary grounds.

24. In my opinion there should be an order by way of judicial review, quashing the decision and order of the learned magistrate that he had no jurisdiction to hear and determine the Complaint and directing him to hear and determine the Complaint according to law.

JUDGE2 BOLLEN J I agree with the order proposed by the Chief Justice. I unhesitatingly agree with the reasons of the Chief Justice save as to the question of "appeal". On that issue I have hesitated. In the end I am persuaded by the reasoning of the Chief Justice that relief should not be refused on discretionary grounds.

JUDGE3 DEBELLE J The plaintiff applies for orders quashing a decision of an industrial magistrate made on 20 January 1994, when the magistrate held that the Industrial Court of South Australia did not have jurisdiction to hear a complaint made against an employee of General Motors-Holden's Automotive Ltd at its premises at Elizabeth for a breach of s21(1)(b) of the OccupationalHealth, Safety and Welfare Act 1986 (SA) ("the Act"). The plaintiff also seeks orders that the magistrate be directed to hear and determine the complaint according to law.

2. On 23 August 1992 the plaintiff had issued a complaint against an employee of General Motors-Holden's Automotive Ltd ("GMH") alleging that whilst employed by GMH at its premises at Phillip Highway, Elizabeth, he had contravened s21(1)(b) of the Act in that he failed to take reasonable care to avoid adversely affecting the health and safety of another person at work. That other person was an employee of an independent contractor working at the premises at GMH at Elizabeth. Section 21(1)(b) of the Act provides:
    "(1) An employee shall take reasonable care -
    (a) to protect his or her own health and safety at work; and
    (b) to avoid adversely affecting the health or safety of any
    other person through any act or omission at work."

3. The subsection then goes on to identify particular instances of a breach of the duties established in paragraphs (a) and (b). Thus, s21(1)(b) by its terms plainly imposes an obligation on an employee to take reasonable care to avoid causing injury to all others in the workplace.

4. GMH and its employees are parties to and bound by the General Motors-Holden's Automotive Ltd Occupational Health and Safety Award 1988. That award adopts the provisions of the Vehicle Industry Occupational Health and Safety Award 1986. Both awards have been amended from time to time. It is a federal award and provides for the duties of both employers and employees bound by it in relation to occupational health and safety. Clauses 19 and 20 of the award provide:
    "19. An employee while at work shall:
    (a) take that care of which the employee is capable for the
    employee's own health and safety and for the health and
    safety of any other person who may be affected by the
    employee's acts or omissions at the workplace; and
    (b) observe all safety rules and instructions of the
    employer.
    20. An employee shall not:
    (a) wilfully or recklessly interfere with or misuse anything
    provided by the employer in the interests of health or
    safety of any persons at the workplace; or
    (b) wilfully place at risk the health or safety of any
    person at the workplace."

5. Those clauses exhibit a clear intention to impose on employees a duty to take reasonable care in respect of any other person who is present in the workplace. The expressions "any other person" in clause 19 and "any person" in clause 20 would plainly include the employee of an independent contractor who is present in the workplace. The terms of clauses 19 and 20 demonstrate an intention to cover the field of the duty of care to be exercised by employees to all others who come to the workplace. There is no challenge to the validity of the award.

6. On its face, clauses 19 and 20 of the award cover the same field as s21(1)(b) of the Act, namely, the duty of employees to avoid adversely affecting the health or safety of any other person in the workplace. If they in fact did cover the same field, the federal award would by virtue of s152 of the Industrial Relations Act (Cth) 1988 have prevailed over the inconsistent provisions in the State Act: Metal Trades Industry Association v Amalgamated Metal Worker's Shipwrights' Union (1983) 152 CLR 632. However, clause 9 of the award contains provisions which expressly save the State legislation. Clause 9 provides:
    '(a) Subject to the provisions of this clause, nothing
    contained in this award shall affect the operation of
    relevant State legislation, provided however that the
    following matters shall be regulated by this award to the
    exclusion of the provisions of relevant State legislation:
     "(i) the duties and obligations of employers to employees
     with respect to occupational health and safety prescribed
     by this Award, to the exclusion of the general provisions
     referred to in subclause (c) hereof, but so as not to
     affect the operation of relevant State legislation not
     otherwise excluded by the provisions of this Award;
     (ii) the duties and obligations of employees to employers
     and of employees to each other with respect to
     occupational health and safety prescribed by this Award,
     to the exclusion of the general provisions referred to in
     subclause (c) hereof, but so as not to affect the
     operation of relevant State legislation not otherwise
     excluded by the provisions of this Award;
     (iii) the duties and obligations of employers to
     independent contractors and their employees with respect
     to occupational health and safety."
     (iv) to (xi) ... (not presently relevant).
    (b) (Not presently relevant.)
    (c) The general provisions referred to in paragraphs (i) and
    (ii) of subclause (a) of this clause are the provisions of
    relevant State legislation mentioned hereunder (and any
    provisions amending or replacing such provisions) to the
    extent that such provisions relate to the duties and
    obligations of employers to employees or of employees to
    employers, or of employees to each other."

7. It is common ground that ss19 to 25 inclusive of the Occupational Safety Health and Welfare Act 1986 (SA) is State legislation to which paragraph (c) applies.

8. The magistrate held that the federal award expressed a clear intention to deal comprehensively with the issue of safety in the workplace. He held that the word "employee" in clause 9(a)(ii) and in 9(c) was not restricted to employees of GMH but applied also to employees of independent contractors. In his view, there was, therefore, an inconsistency between the terms of the federal award and s21(1)(b) which rendered the State provision inoperative. He held that he had no jurisdiction to hear and determine the complaint.

9. The magistrate erred in characterising the issue as one of jurisdiction. At all times, the magistrate had jurisdiction to hear the complaint which had been laid under State legislation. If the terms of the federal award applied, the State legislation was inoperative to the extent of the inconsistency and the alleged offender would have a good defence to a charge made under the State legislation.

10. It is well settled that a provision in a Commonwealth statute evincing an intention that the statute is not intended to cover the field cannot avoid or eliminate a case of direct inconsistency of the kind which arises, for example, when Commonwealth and State laws make contradictory provisions upon the same topic, making it impossible to obey both laws: Reg. v Loewenthal; ex parte Blacklock (1974) 131 CLR 338, 346-347; Reg. v Credit Tribunal; ex parte General Motors Acceptance Corporation (1977) 137 CLR 545, 563. But where there is no direct inconsistency and the inconsistency, if any, only arises if the Commonwealth law is intended to be an exhaustive and exclusive law, a Commonwealth law may validly provide that it is not intended to be an exhaustive or exclusive provision with respect to the subject matter, thereby enabling a State law, not directly inconsistent, to continue to operate: Reg. v Credit Tribunal (supra). What the Commonwealth law does is make it clear that the Commonwealth law is not intended to cover the field.

11. Clause 9 of this federal award expressly states the field that it intends to cover by providing that the State Act shall continue to apply to employers and employees covered by the award except in the areas named in pars(i) to (xi) of clause 9(a) of the award. Thus, employees will be subject to both the State and federal law unless it is impossible to obey both laws or the conduct complained of falls within one of the stated exceptions in clause 9(a). It has not been suggested that there is any inconsistency in the sense that it is impossible to obey both laws. The only issue then is whether the conduct complained of falls within one of the exceptions. A fair reading of those exceptions discloses that the conduct the subject of the present complaint does not fall within the exceptions.

12. The second respondent submitted that the expression "the duties and obligations... of employees to each other" in para(ii) of clause 9(a) extended to include employees of independent contractors who were working in the same work place. The expression was not limited, it was said, to co-employees, that is to say, persons employed by the same person. I do not think that is a fair reading of par(ii). Clause 9(a)(ii) is the corollary to clause 9(a)(i) which imposes an obligation on employers with respect to the occupational health and safety of employees. Clause 9(a)(ii) imposes a reciprocal obligation on employees towards employers and adds a further obligation in respect of fellow employees. Further, a reading of the whole of the award discloses a number of express references to independent contractors and employees of independent contractors. One example is par(iii) of clause 9(a) which preserves the paramountcy of the award in respect of the duties and obligations of employers to independent contractors and their employees. The reference to employees in par(iii) is plainly a reference to employees of independent contractors. By contrast, clause 13 expressly provides a means by which independent contractors are required to comply with State legislation. There is no provision in the award which deals with the duties and obligations of employees in the work place to employees of independent contractors who are working in the same work place. Had it been intended that the award should be paramount in that area, the award could have easily provided for it. In my view, par(ii) relates only to the duties and obligations of co-employees.

13. In the result, employees are subject to the duties and obligations imposed by both the State Act and the federal award in relation to other persons who come into the workplace. The industrial magistrate, therefore, had jurisdiction to hear and determine the complaint.

14. I have had the advantage of reading the draft reasons of the Chief Justice and agree that in this case it is appropriate to extend the time within which to issue the application for judicial review. On one view of the matter, the application was issued within time, namely, within six months of the date when the magistrate published his reasons. I agree also that, notwithstanding the right of appeal provided by s42(2)(a) of the MagistratesCourt Act, this Court should hear and determine this application. I agree also that, notwithstanding the delays which have occurred, this Court should not in the exercise of its discretion refuse the relief sought by way of judicial review.

15. I agree with the terms of the order proposed.