Nicholson v MSF Sugar Pty Ltd

Case [2025] QDC 99

DISTRICT COURT OF QUEENSLAND

CITATION:

Nicholson v MSF Sugar Pty Ltd [2025] QDC 99

PARTIES:

SIMON NICHOLSON (WORK HEALTH AND SAFETY PROSECUTOR)

(Appellant)

v

MSF SUGAR PTY LTD

(Respondent)

FILE NO:

APPEAL NO:  DC 119/23

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

25 July 2025

DELIVERED AT:

Cairns

HEARING DATE:

19 August 2024

JUDGE:

Morzone KC DCJ

ORDER:

1.   Appeal allowed.

2.   The orders of the Magistrates Court made in Cairns on 22 and 23 November 2023 are set aside, and in lieu it is ordered that the appellant have leave to file and serve amended particulars of the charge within 14 days.

3.   The proceeding is remitted to the Magistrates Court Cairns Registry for rehearing before a different magistrate in due course.

CATCHWORDS:

CRIMINAL LAW – appeal pursuant to s 222 Justices Act 1886 – complaint under s 40C Electrical Safety Act 2002 (Qld) for breach of electrical safety duty – appeal against refusal to amend particulars – error of law in disallowing amendment – error in ruling risk assessment evidence inadmissible – remittal.

LEGISLATION:

District Court of Queensland Act 1976 (Qld) s 113
Electrical Safety Act 2002 (Qld) ss 10(1)(a), 10(2)(a), 10(4)(a), (b) 28, 30, 40C, 48N
Electrical Safety Code of Practice 2013 (Qld)
Justices Act1886 (Qld) ss 222, 223, 225

CASES:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Dwyer v Calco Timbers (2008) 234 CLR 124

Dyers v The Queen (2002) 210 CLR 285

Forrest v Commissioner of Police [2017] QCA 132
Fox v Percy (2003) 214 CLR 118
Harrison v President of the Industrial Court of Queensland & Ors [2016] QCA 89
House v The King (1936) 55 CLR 499
Johnson v Miller (1937) 59 CLR 467
Karimbla Construction Services Pty Ltd v President of Industrial Court (Qld) [2014] QSC 56
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
McDonald v Queensland Police Service [2017] QCA 255
Norbis v Norbis (1986) 161 CLR 513
R v Logan [2012] QCA 210

R v Quagliata [2019] QCA 45

R v Trifyllis [1998] QCA 416
Wang v Hur [2024] QCA 126
Warren v Coombes (1979) 142 CLR 531

White v Commissioner of Police [2014] QCA 121

COUNSEL:

JR Hunter KC and SJ Cartledge for the Appellant.

RA Perry KC and B McMillan for the Respondent.
SOLICITORS:

The Office of the Work Health and Safety Prosecutor for the Appellant.

Herbert Smith Freehills for the Respondent.

Summary

  1. The appellant appeals against the decision to dismiss the complaint on the grounds that the trial magistrate erred in refusing to allow the prosecution to amend the particulars. This refusal excluded probative evidence relating to risk assessment and other relevant matters.

  2. The appeal is opposed. The respondent argues that no error has been established and that the appeal is entirely without merit. The respondent further submits that the appeal should not have been brought or continued, particularly in light of the well-established duties of a prosecutor acting…

Continue reading Nicholson v MSF Sugar Pty Ltd

Sign in free to access the full text

Details
AGLC
Nicholson v MSF Sugar Pty Ltd [2025] QDC 99
Case
[2025] QDC 99
Decision Date

CaseChat Overview and Summary

In Nicholson v MSF Sugar Pty Ltd, the defendant was appealing against the decision of the Magistrates Court, which had dismissed an application to amend particulars of a complaint under section 40C of the Electrical Safety Act 2002 (Qld). The defendant was charged with breaching an electrical safety duty and sought to amend the particulars to include additional details about risk assessment and prior conduct. The court was tasked with determining whether the magistrate erred in refusing the amendment and whether there was an error in ruling certain evidence inadmissible.

The legal issues at the heart of this appeal revolved around the admissibility of evidence related to risk assessments and prior incidents, and the correctness of the magistrate's refusal to allow the particulars to be amended. The court examined whether the magistrate's decision to exclude evidence about risk assessments and prior conduct was an error of law. The court found that the evidence in question, particularly the expert opinion on risk assessment, was relevant and should have been admitted. Consequently, the magistrate's ruling was deemed erroneous. The court also concluded that the refusal to allow the amendment of particulars constituted a legal error.

The court's reasoning led to the conclusion that both identified errors warranted the setting aside of the magistrate's orders. The court allowed the appeal, finding that the evidence relating to risk assessments and prior incidents was indeed admissible and should have been considered. The court set aside the orders made by the Magistrates Court and granted the defendant leave to amend the particulars within 14 days. The matter was remitted to the Magistrates Court for a rehearing before a different magistrate. This decision ensures that all relevant evidence is properly considered, providing a fair opportunity for the defendant to respond to the amended charges.

Orders

Orders of the court

1. Appeal allowed.

2. The orders of the Magistrates Court made in Cairns on 22 and 23 November 2023 are set aside, and in lieu it is ordered that the appellant have leave to file and serve amended particulars of the charge within 14 days.

3. The proceeding is remitted to the Magistrates Court Cairns Registry for rehearing before a different magistrate in due course.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The appeal is allowed on that ground.Did the learned magistrate err in ruling the evidence relating to risk assessment and matters arising prior to the date of the incident were inadmissible? Following the ruling on the amendment of particulars, the learned magistrate made the further ruling that excluded all evidence regarding the assessment of risk, prior knowledge of the risk, previous work conduct (including prior operation of the crane), and any evidence related to work performed at the site before the incident day. As a result, the prosecution's case was limited to admissions and documentary exhibits that had already been submitted. The prosecution then closed its case, and the defendant was found to have no case to answer and was discharged on 23 November 2023. Having regard to my findings on the first ground, this ground is rendered nugatory. The expert evidence of risk assessment in the report of Professor Love is plainly relevant, and any other relevant evidence will be a matter for the retrial.Remittal In the disposal of the appeal, this court has the same powers as the Court of Appeal on an appeal.[9] Further, s 225 Justices Act1886 (Qld) provides that:“(1)On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.(2)If the judge sets aside an order, the judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration.(3)For subsection (1), the judge may exercise any power that could have been exercised by whoever made the order appealed against.(4)An order made under subsection (1) has effect, and may be enforced in the same way, as if it had been made by whoever made the appealed order.”[9] District Court of Queensland Act 1976 (Qld) s 113. Having regard to my findings, the orders of the Magistrates Court made in Cairns on 22 and 23 November 2024 ought to be set aside, and in lieu it is ordered that the appellant have leave to file and serve amended particulars of the charge within 14 days. I now consider the utility of sending the proceeding back to the Magistrates Court with guidance directions for rehearing or reconsideration according to law. In Dyers v The Queen,[10] Gaudron and Hayne JJ said of the discretion to remit:“22. In these circumstances, it would ordinarily follow that a new trial should be ordered, leaving it to the prosecuting authorities to decide whether to proceed with a new trial. In this case, however, the sentence imposed on the appellant has expired. The decision whether to continue a prosecution is ordinarily a decision for the executive, not the courts. There have, however, been cases where this Court has quashed a conviction, without either ordering a new trial or directing entry of a verdict of acquittal (See, eg, Callaghan v The Queen (1952) 87 CLR 115). To make an order that would preclude a new trial would constitute a judicial determination of the proceedings against the appellant otherwise than on trial by jury and in circumstances where it is not held that the evidence adduced at trial required the jury to acquit the appellant.”[10] Dyers v The Queen (2002) 210 CLR 285 at [23].

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.