Newman v TJV Electrical Pty Ltd

Case [2011] QMC 16

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Newman v TJV Electrical P/L [2011] QMC 16

PARTIES:

CLIVE JOHN NEWMAN

(respondent)

v

TJV ELECTRICAL PTY LTD

(applicant)

FILE NO/S:

MAG262372/09(0)

DIVISION:

Industrial Magistrates Court

PROCEEDING:

Application to strike out complaint

ORIGINATING COURT:

Industrial Magistrates Court at Brisbane

DELIVERED ON:

2 March 2011

DELIVERED AT:

Brisbane

HEARING DATE:

15 February 2011

MAGISTRATE:

Lee G

ORDER:

Application to strike out complaint is allowed

CATCHWORDS:

INDUSTRIAL LAW - WORKPLACE HEALTH AND SAFETY – PROSECUTION - Application to strike out complaint – whether lack of pleading essential factual ingredients of offence – whether this amounts to denying jurisdiction in this court – whether complaint should be struck out – whether curable by ordering further and better particulars

Electrical Safety Act 2002(Qld), s 5(a), s 10, s 14, s 18, s 19, s 21, s 22, s 26, s 27, s 30, s 41, s 42, s 44, s 46, s 47, s 137(1)(d) & (e), s 186(1) & (3), s 187

Electrical Safety Regulation 2002

Electrical Safety (Codes of Practice) Notice 2002     

Industrial Relations Act 1999(Qld), s 683(2)

Justices Act 1886 (Qld), s 47, s 48,

Occupational Health and Safety Act 1983 (NSW)

Workplace Health and Safety Act 1995 (Qld), s 3A, s 9, s 24, s 28, s 29, s 37

Australian Meat Industry Employees Union v Sunland Enterprises Pty Ltd (1987) 36 A Crim R 418, cited

Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; (2010) HCA 1, followed

Hayes v Wilson, ex parte Hayes [1984] 2 Qd R 114 cited

John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508, cited

Johnson v Miller (1937) 59 CLR 467, cited

NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland [2010] QSC 373, considered

COUNSEL:

J Hunter SC for the respondent

R Perry SC for the applicant

SOLICITORS:

Legal and Prosecution Services, Fair and Safe Work Queensland for the respondent

Norton Rose Australia for the applicant

  1. On 16 November 2009, the complaint of Clive John Newman (the complainant), an Inspector appointed under the Electrical Safety Act 2002 (the ES Act), charging TJV Electrical Pty Ltd (TJV) with an offence under the ES Act was filed. The relevant wording of the complaint is as follows:

    ..that on 17th day of November 2008 at Eagle Farm …TJV Electrical Pty Ltd being a person on whom an electricity safety obligation prescribed by section 30(2) of the Electrical Safety Act 2002 is imposed did fail to discharge that obligation contrary to section 27 of the said Act

    Particulars

    Failure:  It is alleged that, being an employer, TJV Electrical Pty Ltd failed to ensure that its business or undertaking was conducted in a way that was electrically safe [s 30(2) and (3)]

    Worker:  Michael Joseph Laffey

    Workplace:External main switchboard number 1.07 at [address]

    Business or Undertaking:     Electrical contracting

    AND IT IS ALLEGED that the breach caused the death of…

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Details
AGLC
Newman v TJV Electrical P/L [2011] QMC 16
Case
[2011] QMC 16
Decision Date

CaseChat Overview and Summary

The case of Newman v TJV Electrical Pty Ltd involved a dispute concerning the adequacy of a complaint filed against TJV Electrical Pty Ltd, pertaining to alleged breaches of workplace health and safety regulations. The matter was brought before the court to determine whether the complaint should be struck out due to its perceived insufficiency in pleading the essential factual ingredients of the offence. The primary legal issue before the court was whether the lack of certain details in the complaint rendered it incurably defective and whether this defect effectively denied the court's jurisdiction to hear the case.

The court examined the nature of the complaint and the arguments presented by both parties. The complainant argued that deficiencies in pleading are a matter of extent and degree, and the deficiencies in this case did not render the complaint incurably defective. The respondent, however, contended that the complaint was fundamentally flawed and should be dismissed as it failed to adequately plead the essential facts required for the court to exercise its jurisdiction. After careful consideration of the arguments and the specifics of the case, the court concluded that the deficiencies in the complaint were indeed so significant that they rendered it incurably defective, thereby denying the court's jurisdiction.

Ultimately, the court decided that the application to strike out the complaint was justified. The court found that the complaint did not sufficiently plead the essential factual ingredients of the offence, which was necessary for the court to exercise its jurisdiction. The court granted the application to strike out the complaint on the basis that it was incurably defective. The court indicated that it would be open to hearing further submissions from the parties regarding any other orders, including the question of costs, if the parties could not reach an agreement. The final order of the court was to allow the application to strike out the complaint.

Orders

Orders of the court

Application to strike out complaint is allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The complainant contended that if the complaint before this court is held incurably defective, then most other charges that come before this court would also be defective. One example given is a charge of public nuisance where the act constituting the public nuisance is not particularised. This example and other examples given during oral submissions of course relate to charges under different legislation. It is true that a complaint for a public nuisance offence may not plead the particular act that constitutes the public nuisance but all other matters constituting the offence generally are. However, I agree with oral submissions for TJV that one should not hypothesise about whether pleadings in other cases are or are not deficient. The thrust of the complainant’s submissions, as I understand them, is that deficiency in pleading is a matter of extent and degree and that the deficiencies in this case are not so great as to render the complaint incurably defective. For the reasons identified above, I respectfully do not agree. Conclusion The application to strike out the complaint on the basis that it is incurably defective so as to deny jurisdiction in this court is granted. I will hear the parties if other orders are sought including the question of costs if the parties cannot agree.

Ratio Decidendi

Legal Principle Established

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