Parhusip v Bell; Bell v Parhusip - [2015] ICQ 25

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Parhusip v Bell; Bell v Parhusip [2015] ICQ 025

PARTIES:

ROY PARHUSIP

(appellant)

v
STEWART LYNN BELL

(respondent)

FILE NO/S:

C/2014/54

PARTIES:

STEWART LYNN BELL

(appellant)

v
ROY PARHUSIP

(respondent)

FILE NO/S:

C/2014/55

DELIVERED ON:

25 September 2015

HEARING DATE:

4 February 2015

MEMBER:

Martin J, President

ORDER/S:

1. In matter C/2014/54 the appeal is dismissed.

2. In matter C/2014/55 the appeal is allowed. The orders of the industrial magistrate are set aside.

CATCHWORDS:

MAGISTRATES – COMMENCEMENT OF PROCEEDINGS – PARTICULARS AND CONTENT OF INITIATING PROCESS – VALIDITY IN OTHER PARTICULAR CASES – where the defendant was issued with a complaint and summons in relation to safety matters under the Petroleum and Gas (Production and Safety) Act 2004 – where the complaint was accompanied by particulars – where amended particulars were provided after the limitation period had expired – where, at a directions hearing, the defendant applied for directions that the prosecution file and serve an application to amend the complaint, on the basis that the revised particulars changed essential elements of the complaint – where, in respect of the description of ‘operating plant’, the learned industrial magistrate determined that the revised particulars did not alter any essential element of the complaint – where, in respect of the manner of the alleged offending, the learned industrial magistrate found that the revised particulars changed the manner in which the prosecution alleged the defendant committed the offence and formed essential elements of the complaint – where the learned industrial magistrate directed that the portion of the revised particulars relating to the manner of the alleged offending be struck out – whether the learned industrial ought to have found that the defendant had not made the true nature of the offence known to him and therefore should have struck out the complaint as having failed to unambiguously allege and essential element of the offence within time – whether the learned industrial magistrate erred in finding that the revised particulars provided with regard to the operating plant are not essential elements of the complaint and that the prosecution is not required to apply to amend – whether the learned industrial magistrate had the power to strike out part of the particulars – whether power to amend the complaint under s 48 of the Justices Act 1886 was enlivened – whether the learned industrial magistrate erred in holding that the amendment to the particulars changed the true nature or essential elements of the charge, such that the prosecution was requirement to seek leave to amend the complaint.

Industrial Relations Act 1999, s 677, s 683
Justices Act 1886, s 27(1), s 42, s 43, s 47, s 48, s 49, s 83A

Petroleum and Gas (Safety and Production) Act 2004, s 670(5), s 672, s 673, s 674(1), s 675, s 837

CASES:

Bell v Hendry [2014] ICQ 18
Dare v Pulham (1982) 148 CLR 658

Gerakiteys v The Queen (1984) 153 CLR 317

GPI (General) Pty Ltd v Industrial…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] ICQ 25
Decision Date: 25 September 2015

CaseChat Overview and Summary

In Parhusip v Bell; Bell v Parhusip, the Court of Appeal reviewed the decisions of an industrial magistrate in relation to amended particulars provided by the prosecution after the limitation period had expired. The defendant, Parhusip, had been issued with a complaint and summons under the Petroleum and Gas (Production and Safety) Act 2004, accompanied by particulars. After the limitation period expired, amended particulars were provided. At a directions hearing, Parhusip applied for directions that the prosecution file and serve an application to amend the complaint, arguing that the revised particulars changed essential elements of the complaint. The magistrate struck out part of the revised particulars relating to the manner of the alleged offending but did not strike out the portion relating to the description of 'operating plant'. Parhusip appealed the decision, arguing that the magistrate should have struck out the complaint entirely as it failed to unambiguously allege an essential element of the offence within time. Bell cross-appealed, arguing that the magistrate should have struck out the entire complaint.

The Court of Appeal considered whether the magistrate had the power to strike out part of the particulars and whether the power to amend the complaint under s 48 of the Justices Act 1886 was enlivened. The Court held that it was not open to the magistrate to consider whether any application to amend might or might not be granted. The Court found that there was no need to seek leave to amend the particulars, and it was inappropriate for a court to determine the outcome of an application that had not been made. The Court held that the magistrate should not have struck out part of the revised particulars relating to the manner of the alleged offending, as it changed the true nature or essential elements of the charge. However, the Court found that the magistrate did not err in holding that the amendment to the particulars provided with regard to the operating plant were not essential elements of the complaint, and the prosecution was not required to apply to amend.

The Court of Appeal concluded that the application to the industrial magistrate was misconceived and should have been dismissed. The appeal by Parhusip was dismissed, and the cross-appeal by Bell was allowed. The orders of the industrial magistrate were set aside.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It was not open to the industrial magistrate to consider whether any application to amend might or might not be granted. Apart from the fact that there was no need to seek leave to amend the particulars, it is inappropriate for a court to purport to determine the outcome of an application (which has not been made) in circumstances where all the facts and circumstances which might give rise to an application to amend are unknown. Conclusion and orders The application to the industrial magistrate was misconceived. It should have been dismissed. It follows that the appeal from those orders by Mr Parhusip must be dismissed and the appeal by Mr Bell must be allowed. The orders of the industrial magistrate are set aside.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Parhusip v Bell; Bell v Parhusip [2015] ICQ 025
PARTIES:	ROY PARHUSIP (appellant) v STEWART LYNN BELL (respondent)
FILE NO/S:	C/2014/54
PARTIES:	STEWART LYNN BELL (appellant) v ROY PARHUSIP (respondent)
FILE NO/S:	C/2014/55
DELIVERED ON:	25 September 2015
HEARING DATE:	4 February 2015
MEMBER:	Martin J, President
ORDER/S:	1. In matter C/2014/54 the appeal is dismissed. 2. In matter C/2014/55 the appeal is allowed. The orders of the industrial magistrate are set aside.
CATCHWORDS:	MAGISTRATES – COMMENCEMENT OF PROCEEDINGS – PARTICULARS AND CONTENT OF INITIATING PROCESS – VALIDITY IN OTHER PARTICULAR CASES – where the defendant was issued with a complaint and summons in relation to safety matters under the Petroleum and Gas (Production and Safety) Act 2004 – where the complaint was accompanied by particulars – where amended particulars were provided after the limitation period had expired – where, at a directions hearing, the defendant applied for directions that the prosecution file and serve an application to amend the complaint, on the basis that the revised particulars changed essential elements of the complaint – where, in respect of the description of ‘operating plant’, the learned industrial magistrate determined that the revised particulars did not alter any essential element of the complaint – where, in respect of the manner of the alleged offending, the learned industrial magistrate found that the revised particulars changed the manner in which the prosecution alleged the defendant committed the offence and formed essential elements of the complaint – where the learned industrial magistrate directed that the portion of the revised particulars relating to the manner of the alleged offending be struck out – whether the learned industrial ought to have found that the defendant had not made the true nature of the offence known to him and therefore should have struck out the complaint as having failed to unambiguously allege and essential element of the offence within time – whether the learned industrial magistrate erred in finding that the revised particulars provided with regard to the operating plant are not essential elements of the complaint and that the prosecution is not required to apply to amend – whether the learned industrial magistrate had the power to strike out part of the particulars – whether power to amend the complaint under s 48 of the Justices Act 1886 was enlivened – whether the learned industrial magistrate erred in holding that the amendment to the particulars changed the true nature or essential elements of the charge, such that the prosecution was requirement to seek leave to amend the complaint. Industrial Relations Act 1999, s 677, s 683 Justices Act 1886, s 27(1), s 42, s 43, s 47, s 48, s 49, s 83A Petroleum and Gas (Safety and Production) Act 2004, s 670(5), s 672, s 673, s 674(1), s 675, s 837
CASES:	Bell v Hendry [2014] ICQ 18 Dare v Pulham (1982) 148 CLR 658 Gerakiteys v The Queen (1984) 153 CLR 317 GPI (General) Pty Ltd v Industrial…