SUPREME COURT OF QUEENSLAND
CITATION:
J Hutchinson Pty Ltd v Guilfoyle [2022] QCA 186
PARTIES:
J HUTCHINSON PTY LTD
ACN 009 778 330
(applicant)
v
AARON JOHN GUILFOYLE
(respondent)FILE NO/S:
CA No 253 of 2021
DC No 916 of 2021DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:
District Court at Brisbane – [2021] QDC 221 (Reid DCJ)DELIVERED ON:
27 September 2022
DELIVERED AT:
Brisbane
HEARING DATE:
8 June 2022
JUDGES:
Bowskill CJ and Morrison and Dalton JJA
ORDERS:
1. Application for leave to appeal granted.
2. Appeal dismissed.
3. The applicant pay the respondent’s costs of and incidental to the appeal.
4. Paragraph 2 of the application filed in the Magistrates Court on 15 December 2020 is dismissed.
CATCHWORDS:
APPEAL AND NEW TRIAL – INDUSTRIAL LAW – QUEENSLAND – OFFENCES – OTHER MATTERS – where a complaint was laid against the applicant (Hutchinson) alleging a breach of a statutory health and safety duty pursuant to the Work Health and Safety Act 2011 (Qld) – where Hutchinson applied in the Magistrates Court to have the complaint struck out on the basis that it was void, because the “complaint on its face fails to particularise the legal ingredients of any offence and therefore fails to engage the jurisdiction of the Court” – where the complaint was struck out by the learned Magistrate as being a nullity which was “beyond the reach of amendment” – where that order was challenged on appeal to the District Court on the sole ground that the Magistrate was wrong to find that the complaint was a nullity – where the learned primary judge allowed the appeal and set aside the Magistrate’s order – where Hutchinson seeks leave to appeal, contending that the conclusion in the District Court was attended by error – where in Kidman a worker was fatally injured during the course of an incident – where outside the limitation period, a complaint was laid against the owner in the Court of Summary Jurisdiction charging that the circumstances concerning the death constituted an offence against s 32 of the Work Health andSafety (National Uniform Legislation) Act 2011 (NT) – where on appeal it was contended that the complaint was defective and invalid because: (i) it did not specify the deceased was a worker at the time; and (ii) it did not provide particulars of the specific basis on which it was alleged that the owner had failed to ensure the health and safety of the worker – where the Court of Appeal held that the complaint was defective in that it omitted one of the essential elements of the offence, but that the defect was not fatal because there was a power of amendment – where the conclusion of the Court was that the defective complaint was open to amendment and should be amended – where , the differences between the two provisions (ie s 183 Justices Act 1928 (NT) and s 48 Justices Act 1886
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- Case
- [2022] QCA 186
- Decision Date
CaseChat Overview and Summary
The primary legal issue was whether the complaint was a nullity that could not be amended or if it was defective but amendable. Hutchinson argued that the complaint was a nullity and therefore beyond the reach of amendment, relying on common law principles and prior case law. Conversely, the District Court found that the complaint was defective but not a nullity, and it was capable of amendment. The court relied on the decision in Kidman, which held that a complaint omitting an essential element of an offence was not a nullity and could be amended. The key issue was whether the differences between the relevant provisions of the Queensland and Northern Territory statutes were significant enough to preclude the application of Kidman.
The District Court's decision was based on the reasoning that the complaint, while defective, was not a nullity and was capable of amendment. The court found that the principles in Kidman were applicable, despite the differences in the relevant statutes, as the essential elements of the complaint were present. The court held that the Magistrate should have considered whether to allow an amendment to the complaint, even though no such application had been made. The appeal court allowed the application for leave to appeal but dismissed the appeal itself, holding that while the complaint was defective, it was not a nullity and could be amended. Consequently, the appeal was dismissed, and the orders included granting the application for leave to appeal, dismissing the appeal itself, and ordering Hutchinson to pay the respondent's costs of and incidental to the appeal. Furthermore, paragraph 2 of the application filed in the Magistrates Court was dismissed.
Orders
Orders of the court
1. Application for leave to appeal granted.
2. Appeal dismissed.
3. The applicant pay the respondent’s costs of and incidental to the appeal.
4. Paragraph 2 of the application filed in the Magistrates Court on 15 December 2020 is dismissed.
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
Ratio Decidendi
Legal Principle Established
Mr Roney QC, appearing with Mr Byrnes for Hutchinson, advanced the same submissions as made before the learned primary judge. In essence they were:(a)the complaint was devoid of the factual matters it should contain in accordance with the common law principles laid down in the line of cases such as Kirk v Industrial Court (NSW)[15] and John L Pty Ltd v Attorney-General(NSW);[16] those principles state that a defendant is entitled to be told not only of the legal nature of the offence charged, but also of the particular act, matter or thing alleged as the foundation of the charge, that is, “the time, place and manner of the defendant's acts or omissions” and for fair information and reasonable particularity as to the nature of the offence charged;(b)relying on the decision of this Court in Harrison, compliance with the common law requirements is a threshold question, namely as to the level of particularity that a complaint must contain, and if it does not, then it is a nullity and there is no jurisdiction to amend;(c)the power of amendment under s 48 of the Justices Act is not available to save such a complaint; as to this, reliance was placed upon NK Collins Industries Pty Ltd v President of the Industrial Court,[17] Archer v Simon Transport Pty Ltd,[18] and Harrison;(d)Kidman was of no assistance and should not have been relied upon; it turned upon its own legislative provisions and procedural rules, was not on all fours, and did not decide the current issue; in any event, s 48 of the Act in Queensland is materially different from s 183 in the Northern Territory; and(e)the primary judge erred in finding that the Magistrate ought to have considered whether to exercise the discretion to allow an amendment to the complaint because the Magistrate had not been requested to grant leave to amend, nor had such an application been foreshadowed.[15](2010) 239 CLR 531.[16](1987) 163 CLR 508.[17][2013] QCA 179.[18][2016] QCA 168.Consideration Mr Roney QC accepted that the complaint did disclose an offence known to law.[19] In our respectful view, that concession was right as the complaint follows the wording of s 19(1)(a) and s 32 of the Work Health and Safety Act. As will appear, the same conclusion was reached in Kidman:[20] see paragraph [53] below.[19]Appeal transcript T 1-12 lines 4-8.[20]Kidman at [116]. Later Mr Roney sought to draw a distinction between a complaint that discloses the legal elements by reference to what the relevant section requires, and one that contains the relevant factual elements referred to in Harrison at paragraph [131]: set out in paragraph [29] below. However, the proposition as finally articulated did not depend on that distinction. It was that the question to be considered was whether the complaint was a nullity.[21][21]Appeal transcript T 1-18 line 45 to T 1-19 line 31. Broken into its separate components the complaint here alleges:(a)the date of the offence: on or about 20 June 2018;(b)the place of the offence: at South Brisbane;(c)the accused: J Hutchinson Pty Ltd;(d)the accused was “conducting a business or undertaking”;(e)the accused held a health and safety duty pursuant to section 19(1)(a);[22](f)the duty was to “ensure the health and safety of workers”;(g)the relevant workers were workers “engaged, or caused to be engaged by” the accused;(h)the duty was engaged at a time when “the workers were at work in the business or undertaking”;(i)the duty had been breached, i.e. “failed to comply with the said duty”;(j)the consequence of the breach of duty, i.e. the “failure exposed an individual to a risk of death or serious injury”; and(k)the specific offence: “contrary to section 32 of the Work Health and Safety Act 2011”.[22]Though it said s 19 of the Act, the reference to workers “engaged or caused to be engaged” is a reference to s 19(1)(a).