Nicholson v Carborough Downs Coal Management Pty Ltd & Ors

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INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Nicholson v Carborough Downs Coal Management Pty Ltd & Ors [2022] ICQ 34

PARTIES:

SIMON NICHOLSON (WORK HEALTH AND SAFETY PROSECUTOR)

(applicant)

v
CARBOROUGH DOWNS COAL MANAGEMENT
PTY LTD
(first respondent)
ACTING MAGISTRATE ATHOL KENNEDY
(second respondent)

SIMON NICHOLSON (WORK HEALTH AND SAFETY PROSECUTOR)

(applicant)

v
RUSSELL CLIVE UHR
(first respondent)
ACTING MAGISTRATE ATHOL KENNEDY
(second respondent)

SIMON NICHOLSON (WORK HEALTH AND SAFETY PROSECUTOR)

(applicant)

v
JEREMY DAVID FUTERAN

(first respondent)

ACTING MAGISTRATE ATHOL KENNEDY

(second respondent)

FILE NO/S:

C/2022/17, C/2022/18, C/2022/19

PROCEEDING:

Applications

DELIVERED ON:

23 December 2022

HEARING DATE:

2 December 2022

MEMBER:

Davis J, President

ORDER/S:

In application C/2022/17:

1.   The time for filing the application for prerogative relief is extended to 8 November 2022.

2.    The costs of the applicant and first respondent are reserved to the application for prerogative relief.

In application C/2022/18:

1.    The time for filing the application for prerogative relief is extended to 8 November 2022.

2.    The costs of the applicant and first respondent are reserved to the application for prerogative relief.

In application C/2022/19:

1.   The application for an extension of time is dismissed.

2.    By 4.00 pm on 1 February 2023, the first respondent shall file and serve written submissions on:

(a)  what further orders (if any) ought to be made consequent upon dismissal of the application for an extension of time;

(b) costs against the applicant.

3.    By 4.00 pm on 22 February 2023, the applicant shall file and serve written submissions in reply.

4.    Each party may, by 4.00 pm on 8 March 2023, file an application for leave to make oral submissions on the question of further orders and costs.

5.    In the event that no application to make oral submissions is filed and served by 4.00 pm on 8 March 2023, the question of further orders and costs shall be determined on any written submissions filed and without further oral hearing.

CATCHWORDS:

ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - TIME FOR APPLICATION - EXTENSION OF TIME - GENERALLY - where complaints were sworn against each of the respondents alleging offences against the Coal Mining Safety and Health Act 1999 (CMSH Act) - where the summons to each complaint required the respondent’s attendance at the Magistrates Court - where the Magistrates Court has no jurisdiction to hear the complaints - where the Industrial Magistrates Court has jurisdiction to hear the complaints - where the magistrate struck out the complaints - where the prosecution appealed to the Industrial Court of Queensland and by separate appeal to the District Court - where the first respondents made application to strike out the appeals - where those applications were unsuccessful - where the applicant then sought to bring applications for prerogative relief against the respondents - where those applications were out of time - where the appeals were abandoned - where the applicant applied for an extension of time to bring the applications for prerogative relief - where each respondent said that…

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Details
Case
[2022] ICQ 34
Decision Date

CaseChat Overview and Summary

The case of Nicholson v Carborough Downs Coal Management Pty Ltd & Ors deals with the application for extensions of time to bring applications for prerogative relief. The applicants allege that the respondents, Carborough Downs Coal Management Pty Ltd, Mr Futeran, and Mr Uhr, are guilty of offences under the Coal Mining Safety and Health Act 1999 (CMSH Act) stemming from incidents at the Carborough Downs Coal Mine. The Industrial Magistrates Court struck out the complaints, which were subsequently appealed to the Industrial Court of Queensland and the District Court. The applicants sought prerogative relief, which was filed out of time, and now seek an extension of time to bring these applications.

The court was required to determine whether the delay in filing the applications for prerogative relief was justified, considering the applicants' negligence and the failure to recognise the appropriate remedy earlier. The court also had to weigh the public interest in the prosecutions proceeding against the respondents' claims of prejudice due to the delay. Additionally, the court examined the specific prejudice claimed by the respondents, such as commercial impact and employment prospects, and whether a fair trial could still be achieved.

The court exercised its discretion, taking into account the common considerations across all applications for extension of time. It found that the applications for prerogative relief were arguable and could have reasonably been sought earlier. The court recognised the significant public interest in the prosecutions proceeding and the fact that the respondents knew of the challenge to the strike-out orders. Despite the delays, the court concluded that there was no evidence suggesting that a fair trial could not be achieved for any of the respondents. The court granted the applications for extensions of time.

The final orders of the court granted the applications for extensions of time to bring the applications for prerogative relief, allowing the applicants to proceed with their legal actions against the respondents for the alleged offences under the CMSH Act.

Orders

Orders of the court

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Background

Background to the litigation

The applications for prerogative relief were filed out of time and the applicant needs an extension of time to do so.Background The Carborough Downs Coal Mine (the coal mine) is situated on the Peak Downs Highway near Coppabella. Two incidents occurred at the mine. The first happened on 7 September 2019 when part of the roof of a site being excavated collapsed injuring a worker, Mr Cameron Best (the Best incident). On 25 November 2019, the second incident occurred. Material fell from a coal face killing a mine electrician, Bradley James Duxbury (the Duxbury incident). The Coal Mining Safety and Health Act 1999 (CMSH Act) has as its objects the protection of the safety and health of persons at coal mines and the reduction of the risk of injury or illness to any person resulting from coal mining operations.[3] The legislation seeks to fulfil those objectives by various way, including by the imposition of safety obligations upon persons working in or associated with coal mines.[4][3]Coal Mining Safety and Health Act 1999, s 6.[4]Coal Mining Safety and Health Act 1999, s 33. Division 3 of Part 3 of the CMSH Act defines the safety obligations which are imposed. Part of the regulatory scheme of the CMSH Act is the existence of criminal sanctions for the breach of safety obligations.[5][5]Coal Mining Safety and Health Act 1999, s 34. Eight complaints were sworn by Mr Guilfoyle alleging offences against the CMSH Act by various parties. The complaints concerning the Duxbury incident were sworn in November 2020. Those concerning the Best incident were sworn in January 2021. Significantly, all three of the present respondents face charges arising from the Duxbury incident. Two of the present respondents, Carborough Downs Coal Management Pty Ltd (Carborough)[6] and Mr Futeran, also face a complaint concerning the Best incident. Mr Uhr was not charged in relation to that incident. He only faces a charge in relation to the Duxbury incident.[6]There is evidence (affidavit of Anne Bernadine McIntyre) that Carborough Downs Coal Management Pty Ltd has changed its name to Fitzroy Coal Management Pty Ltd, but no party has asked for any formal correction, so I will continue to refer to “Carborough”. Prosecutions under the CMSH Act are conducted under the Justices Act 1886 in the Industrial Magistrates Court.[7] Prosecutions under some other legislation within the WHSP’s responsibilities are conducted in the Magistrates Courts.[8][7]Coal Mining Safety and Health Act 1999, s 255.[8]Petroleum and Gas (Production and Safety) Act 2004, for example. As is the usual practice, complaints and draft summonses were prepared and presented to a justice of the peace. In each case, the justice of the peace issued the summons[9] in accordance with the draft presented.[9]Justices Act 1886, s 53. In relation to each of the complaints relating to the Duxbury incident, the summons commanded the named defendant to appear in the Magistrates Court, not the Industrial Magistrates Court.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Paragraph 25 in the complaint against Carborough is identical to paragraph 25 in the particulars against Mr Futeran. There has seemingly been no attempt to reflect the fact that Mr Futeran was not the Site Senior Executive over much of the period which is relevant to the allegations against Carborough.Findings on common considerations As already observed, there are some features which are common to all three applications for extension of time. I find that:1.the applications for prerogative relief against each of Carborough, Mr Futeran and Mr Uhr are arguable;2.prerogative relief could reasonably have been sought as early as 21 February 2022 when the second respondent delivered reasons on the strike-out applications;3.it was not reasonable to expect an application to be made before that time as there was no real indication that any magistrate hearing the strike-out applications would disavow the jurisdiction of the Industrial Magistrates Court;4.although the applications for remedies in the nature of certiorari are only six days late, it is a relevant consideration that other prerogative relief could have been sought over eight months previously;5.the delays are explained by the negligence of Mr Guilfoyle[56] and the failure of others to appreciate that prerogative relief was the most appropriate remedy;[56]Nominating the wrong court in the summons.6.once advice was received that the appropriate remedy was prerogative in nature;(a)applications were promptly filed;(b)relatively quickly, the appeals were abandoned;(c)the applicant agreed to pay the respondents’ costs of the appeals on the indemnity basis.7.there is a significant public interest in the prosecutions proceeding as the CMSH Act promotes safety in coal mining through a scheme, including prosecution for offences;8.Carborough, Mr Futeran and Mr Uhr knew, within a relatively short time after the second respondent struck out the complaints, that there would be a challenge to those orders;9.Carborough, Mr Futeran and Mr Uhr each point to specific prejudice of the nature of commercial impact (in the case of Carborough) and employment prospects (in the cases of Mr Futeran and Mr Uhr). 10.There is no evidence to suggest that a fair trial cannot be achieved for each of the three respondents.Exercise of discretion re Carborough In addition to the common features as I have identified them, Carborough points to prejudice arising as a result of the operation of the Carbon Credits (Carbon Farming Initiative) Rule 2015 (Cth). No determination has been made against Carborough that it is not a fit and proper person to participate in the Emissions Reductions Fund scheme. What is said is that the conviction might have that effect. There is no suggestion that a conviction is required in order to make the Duxbury incident a relevant consideration in the determination of whether Carborough is a fit and proper person to participate in the scheme. There is no conviction at this point and the Commonwealth are making inquiries. A failure to grant prerogative relief to the applicant is not a vindication of Carborough’s position; neither is an acquittal. An acquittal just recognises a reasonable doubt as to guilt.