Re Fortescue Metals Group Ltd
[2010] WASC 88
•30 APRIL 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE FORTESCUE METALS GROUP LTD; EX PARTE FORTESCUE METALS GROUP LTD [2010] WASC 88
CORAM: McKECHNIE J
HEARD: 29 APRIL 2010
DELIVERED : 30 APRIL 2010
FILE NO/S: CIV 1578 of 2010
MATTER :An application under the Magistrates Court Act 2004 s36 for a review order against Giuseppe Mignacca‑Randazzo, Magistrate of the Magistrates Court of Western Australia at Perth acting in his capacity as Safety and Health Magistrate under s 51B of the Occupational Safety and Health Act 1984 EX PARTE FORTESCUE METALS GROUP LTD (ACN 002 594 872) and THE PILBARA INFRASTRUCTURE PTY LTD (ACN 103 096 340)
EX PARTE
FORTESCUE METALS GROUP LTD
THE PILBARA INFRASTRUCTURE PTY LTD
Applicants
Catchwords:
Courts and judges - Review order to magistrate for rulings made in the course of a trial - Whether review available - Discretion to order stay
Legislation:
Magistrates Court Act 2004 (WA), s 36
Criminal Procedure Act 2004 (WA), s 126
Result:
Application for review dismissed
Category: B
Representation:
Counsel:
Applicants: Mr M J McCusker QC & Mr R F Pintos-Lopes
Non-Party: Mr B P King (for Prosecutor, Christopher Kirwin)
Solicitors:
Applicants: DLA Phillips Fox
Non-Party: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Connell v Reynolds SM (1993) 9 WAR 27
Craig v State of South Australia (1995) 184 CLR 163
Kirk v The Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 262 ALR 569
Rayney v AW [2009] WASCA 203
McKECHNIE J:
How this matter comes to court
Fortescue Metals Group Ltd and The Pilbara Infrastructure Pty Ltd, a wholly owned subsidiary, were engaged in the establishment of infrastructure around the development and operation of the Cloud Break Mine. As their interests coincide I will refer to them in the singular as 'Fortescue'. A camp was established to accommodate workers engaged in building a railway to carry iron ore from the Cloud Break Mine to Port Hedland and workers employed to service the camp.
On 9 March 2007 Tropical Cyclone George crossed the Pilbara coast causing damage to dongas at the camp and a number of workers were either killed or harmed.
Over a year later on 22 July 2008 Fortescue was charged by prosecution notice alleging offences against the Occupational Safety and Health Act 1984 (WA).
On 30 March 2010 Mr J Karkar of Queen's Counsel for Fortescue, informed the Magistrates Court that certain matters were to be raised before the start of the trial. This was the first time any indication had been given that there were preliminary issues.
As a result the magistrate made programming orders for submissions.
In a 105 page decision delivered on 27 April 2010 the magistrate ruled, in summary, that the court had jurisdiction, there was no basis to conclude the charges were bad at law and at this stage of the proceedings, it is not possible to say that the prosecution of any change is foredoomed to fail to justify a conclusion that there is any abuse of process. He upheld an application for further particulars and ordered that they be served by 4.00 pm on 28 April 2010, the trial being set to commence on the morning of 29 April 2010 at 10.15 am.
On the afternoon of 28 April 2010 Fortescue lodged an application for a review order which was argued at 8.30 am on 29 April 2010. At the conclusion of the hearing at 10.00 am I reserved my decision to 9.30 am today, it being agreed that the parties would apply to have the matter before the magistrate stood over until 10.15 am today.
The result
The application for a review order is dismissed. Even if that conclusion is wrong, I would not stay the Magistrates Court proceedings.
The nature of a review order
Judicial review is a supervisory function distinct from an appeal or other review on the merits. The focus is on jurisdictional errors: Rayney v AW [2009] WASCA 203 [25].
A review order is conditioned on an appellant establishing an arguable case of grievance under one of the circumstances set out in the Magistrates Court Act 2004 (WA) s 36(1), (2) or (3). This is a threshold question.
Although the court cannot issue a prerogative writ any more, relief that might have justified a prerogative writ is one ground for review.
The notice of application is defective
The grounds in the application do not point to any grievance within Magistrates Court Act s 36. No ground raises lack of jurisdiction, duty to do an act, or abuse of process. Grounds 1 to 4 repeat the submissions made to the magistrate and conclude that the charges brought under the Occupational Safety and Health Act s 19 should be dismissed.
Ground 5 is a ground specifically to support the grant of a stay, a decision to be made only after the threshold issue is determined.
This ground contains the only reference to abuse of process where in ground 5.9 it is asserted that continuation of the trial on charges that lack any foundation in law is unfair to the applicants and an abuse of the process of the Magistrates Court of Western Australia.
That assertion is not an asserted grievance as to a threshold issue.
The decision to confine the grounds appears to be deliberate. On enquiry as to submissions my Associate was advised that the applicants would not be filing submissions but would rely on the submissions made to the magistrate (supporting affidavit page 129). Effectively then, Fortescue seeks to reargue before this court the points on which it failed before the magistrate. It wants to do this before the trial is concluded even though it does not plead that the magistrate exceeded his jurisdiction or did something as an abuse of process. It wants to fragment the criminal process so that points of law can be answered now.
The application and its grounds conditions this court's powers. If no ground is pleaded there is no power to make a review order. Because the notice of application fails to plead any ground that would justify a review order, the application is dismissed.
Nevertheless the merits are analysed
At the hearing, Mr McCusker, of Queen's Counsel for Fortescue, did not confine himself to the application but argued in support of a review order under Magistrates Court Act s 36 contending that the threshold had been met. Mr King, to whom I granted leave to appear for the prosecutor, over opposition from Mr McCusker, did not argue any question of jurisdiction due to the limited notice he had been given. His arguments were directed largely to the issue of a stay and the discretionary reasons why a stay should not be granted.
I will deal with the threshold question in any event even though the appeal should be dismissed for failure to show any grievance. No different outcome results.
The Magistrates Court proceedings so far
As jurisdiction in the exercise or lack of exercise of power are central to review together with abuse of process, it is necessary to return to the Magistrates Court to see what has happened so far.
That court's jurisdiction was invoked when the prosecution notices were filed. The formal requirements of the notice were satisfied: Criminal Procedure Act 2004 (WA) (CPA) s 23.
The court in which a prosecution of a person for a simple offence is commenced must be a court that has jurisdiction over the person, and jurisdiction to determine a charge of the offence: Criminal Procedure Act s 22(2).
The first mention of the charges in court was on 10 September 2008. Fortescue pleaded not guilty on 4 December 2008. The Chief Magistrate set separate trial dates on 17 March 2009. Fifteen sitting days were set aside for the trial of the charge against FMP commencing on 8 March and then 24 sitting days were set aside for the trial of TPI on 12 April 2010.
On 8 February 2010 by consent, the court ordered that all the charges be determined at a joint trial.
On 7 April 2010 Fortescue lodged an amended written plea adding a plea of not guilty to the charges in the prosecution notice on the basis that the court does not have jurisdiction to deal with the accused or the charge pursuant to the CPA s 126(1).
By notice dated 6 April 2010 Fortescue applied for the following (affidavit page 123):
(a)dismissal of the charges in their entirety;
(b)further or alternatively, an order quashing the charges in their entirety;
(c)further or alternatively, an order under section 76 of the Criminal Procedure Act 2004 (WA) granting a permanent stay of the charges brought under section 19 of the Occupational Safety and Health Act 1984 (WA); and
(d)alternatively, dismissal of the charges brought under section 19 of the Occupational Safety and Health Act 1984 (WA).
By CPA s 64 the court may determine any question of law or procedure in order to facilitate the preparation for, or the conduct of, the trial, or that is otherwise desirable. This is the power that the magistrate exercised receiving submissions and then ruling on the points raised by Fortescue and opposed by the prosecution. This determination is part of the accused's trial although the issues should be determined before an accused's trial begins in a court.
The magistrate's jurisdiction
The assertion that the magistrate lacked jurisdiction is, with respect, misconceived. Jurisdiction was acquired by the Magistrates Court because the offences alleged were simple offences: Magistrates Court Act s 11(2)(a); CPA s 22(2). There is no issue that the magistrate had jurisdiction over each corporation: Criminal Code (WA) s 12. The magistrate is required to hear and determine the charges and decide all questions of fact or law: Magistrates Court Act s 11, s 13.
Whether the charges were bad or not, whether they were able to be proved or not are matters within the jurisdiction of the magistrate. He has in fact determined the first matter by his judgment. The fact that a charge may be wrong in law does not deprive the magistrate of jurisdiction. On the contrary, the magistrate must have jurisdiction to decide that. The result would be that an accused is not guilty but only the magistrate has the jurisdiction to make that determination.
This limited definition of jurisdiction is made plain by CPA s 128(1). If a court finds that it does not have jurisdiction it must send the charge to a court that does have jurisdiction. If this magistrate has fallen into error in his judgment about the charges (a matter about which I express no opinion) that error is an error within jurisdiction. It is not amenable to review. The trial will proceed and the magistrate will ultimately make findings and orders of conviction or acquittal. Those orders may be reviewed by way of an appeal under the Criminal Appeals Act 2004 (WA). Intermediate rulings are not appellable: Criminal Appeals Act s 6. They are not reviewable under the Magistrates Court Act s 36 just because they are arguably wrong.
Review: Magistrates Court Act s 36(1)(a)
Mr McCusker sought to bring the case under the Magistrates Court Act s 36(1)(a) on the grounds that there is an arguable case of error and that the appellant is aggrieved because the magistrate failed to make an order for the dismissal of the charges.
The Magistrates Court Act s 36(1)(a) has no application. The relevant duty of the magistrate is to hear and determine a matter. As a result of his determination a magistrate may, at law, be required to make certain orders. An order in the nature of mandamus or an order under s 36(1) might be brought to compel an magistrate to hear and determine a matter or to make an order or direction in consequence. It cannot be made to compel a magistrate to determine a matter in a particular way.
Apart from being contrary to authority, to hold otherwise and to give s 36(1)(a) the extended operation contended for would be to invite interim review of routine decisions made in the course of a trial, perhaps decisions excluding or including evidence: By analogy, Connell v Reynolds SM (1993) 9 WAR 27.
Review: Magistrates Court Act s 36(1)(b) and (c)
I have dealt with the question of jurisdiction under s 36(1)(b) and s 36(1)(c). The remaining possibilities are whether there is an abuse of process or whether an order for prohibition or certiorari might be justified.
Abuse of process
A magistrate may stay a prosecution permanently if satisfied that the charge is an abuse of process of the court: CPA s 76. This power is more confined than that of a judge who may stay a prosecution in the interests of justice.
CPA s 76 focuses the abuse not on the judicial officer but on the charge. A magistrate has power to protect the court's processes from abuse occasioned by the charge. General principles widen the enquiry on abuse beyond the four corners of the charge to encompass the actions or motives of the prosecutor.
The expression 'abuse of process' in the Magistrates Court Act s 36(b) and s 36(c) relate to something in the nature of an arbitral act done or to be done by a magistrate that would be an abuse of process. In other words, the magistrate, not the initiator of the process, is the abuser. On that basis, a magistrate who determines an issue in a trial, such as whether the charges disclose an offence at law, even if wrong, does not commit an abuse of process. There must be evidence of something more. For example, there may be an imputation of the motives of the magistrate that renders an apparently commonplace decision tainted with abuse. In this case there is no evidence that the magistrate has done anything that would constitute an abuse of process.
Prohibition and certiorari
The principles in relation to both of these writs and their application to court are set out in Craig v State of South Australia (1995) 184 CLR 163. Applying those principles to the present case, I observe that in relation to certiorari there is no 'record' at this stage to be brought into the Supreme Court for the purposes of quashing. There is only an interlocutory ruling. In relation to both prohibition and certiorari, the principles in Craig preclude the making of a review order on any ground that might have justified prohibition or certiorari.
Particulars
The appellants complain about the lack of particularisation and referred to Kirk v The Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 262 ALR 569. The magistrate agreed that the prosecution needed to better particularise and gave the prosecution until 4.00 pm on 28 April 2010 to comply. It did so. Whether it did so sufficiently is a matter which the magistrate can resolve but it is not a matter upon which any ground for review can be established.
Conclusion on review
For all these reasons, even if the application was in order, I would refuse the application.
No stay in any event
I would not order a stay having regard to the peculiar circumstances. Whether or not a stay is granted it is almost certain that the trial will proceed part heard. This is due to a number of reasons including the late start occasioned by dealing with the preliminary matters and a pending appeal in relation to another matter, the result of which may have a bearing on these proceedings.
As to the question of delay in bringing the legal issues to the magistrate for determination before trial, Mr McCusker, in response to a quotation from Mr King of an opinion from the learned authors of The Judicial Review of Administrative Action (4th ed) (that I do not share), said that the delay was because his junior had not thought of the points earlier. I entirely accept that explanation but it does not alter the chronology, it simply provides a reason for it. The delay in bringing the application, though innocently explained, is still delay attributable solely to the applicants and that delay is a fact in whether or not to grant a stay at the eleventh hour.
There is a strongly entrenched principle against the fragmentation of criminal cases. Fragmentation is a powerful factor but nevertheless one of many factors to be taken into account. In this case there would be convenience in having the matters of law resolved before the trial proceeds. As against that, it is now more than three years since the events giving rise to the charges occurred. The prosecution proposes to call eight witnesses who are lay witnesses and who give direct testimony as to the events on the night. Witnesses' memory of events fades with time and there are other reasons why persons who may have suffered injury should not have to wait interminably to relive their experience.
In the present case, balancing all the points which Mr McCusker raised and which are entitled to significant weight, against the undesirability of fragmentation of a criminal case and the effect of delays on the likely evidence of witnesses, I conclude that justice will be best served by allowing the prosecution to proceed until the natural adjournment that will occur. Fortescue could then return under a general liberty to apply to seek a stay if that should prove necessary. On such an application, orders could be made for the expedition of the hearing of the review so that it can be accommodated as far as possible (together with time for a judge to consider the decision) before the trial is scheduled to recommence.
These are the reasons why, even if I am wrong as to the threshold question, I would not grant a stay at this stage.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE FORTESCUE METALS GROUP LTD; EX PARTE FORTESCUE METALS GROUP LTD [2010] WASC 88 (S)
CORAM: McKECHNIE J
HEARD: 29 APRIL 2010 AND ON THE PAPERS
DELIVERED : 30 APRIL 2010
SUPPLEMENTARY
DECISION :1 JULY 2010
FILE NO/S: CIV 1578 of 2010
MATTER :An application under the Magistrates Court Act 2004 s36 for a review order against Giuseppe Mignacca-Randazzo, Magistrate of the Magistrates Court of Western Australia at Perth acting in his capacity as Safety and Health Magistrate under s 51B of the Occupational Safety and Health Act 1984 EX PARTE FORTESCUE METALS GROUP LTD (ACN 002 594 872) and THE PILBARA INFRASTRUCTURE PTY LTD (ACN 103 096 340)
EX PARTE
FORTESCUE METALS GROUP LTD
THE PILBARA INFRASTRUCTURE PTY LTD
Applicants
Catchwords:
Costs of nonparty To follow the event No new principles
Legislation:
Rules of the Supreme Court 1971 (WA), O 66
Result:
Applicants to pay nonparty's costs
Category: B
Representation:
Counsel:
Applicants: Mr M J McCusker QC & Mr R F Pintos-Lopes
Non-Party: Mr B P King (for Prosecutor, Christopher Kirwin)
Solicitors:
Applicants: DLA Phillips Fox
Non-Party: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Nil
McKECHNIE J: The day before the hearing was due to commence in the Magistrates Court, Fortescue applied for a review order, serving the papers on the Magistrate and the prosecutor Mr Kirwin. Over objection from Fortescue, I granted leave to the prosecutor to appear at the application. The prosecutor clearly had a direct interest in the proceedings. Had a review order been granted, the prosecution proceedings he commenced in the Magistrates Court would have been adjourned indefinitely.
The Rules of the Supreme Court 1971 (WA) O 56A require a review order to be made ex parte. This does not prevent a judge giving leave to a party whose interests are directly affected by the application, if the judge considers this to be appropriate. The Rules of the Supreme Court O 56A r 3(2)(e) allows a judge to direct service of the notice on an interested party. Though here, Fortescue had already served the prosecutor.
The power to award costs in favour of a non‑party are said to be exercised only in exceptional circumstances and with considerable caution.
In this case, the prosecutor had a very real, direct and material connection with the litigation and a review order would have directly affected the prosecutor. The prosecutor was a theoretical non‑party only. In practice, the prosecutor had a vital interest in the application as well as any subsequent review proceedings.
It was right that the prosecutor should be able to appear and give the court whatever assistance was possible in the very limited time available.
The normal rule should apply and costs follow the event. The application by Fortescue was refused and the trial proceeded in the Magistrates Court.
The prosecutor seeks the sum of $1,188 being two hours of preparation and one hour of hearing. The costs claimed are reasonable.
Order
The applicants pay the non‑party's costs fixed at $1,188.
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