Re Fortescue Metals Group Ltd - [2010] WASC 88

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…

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: [2010] WASC 88
Decision Date: 30 APRIL 2010

CaseChat Overview and Summary

The case involved Fortescue Metals Group Ltd, which brought proceedings in the Federal Court against certain entities related to a claim for damages for breach of fiduciary duty. The defendants applied to the Federal Court for an order to the Federal Circuit Court for rulings made in the course of a trial. The Federal Circuit Court had ruled that the defendants' application for an interlocutory injunction was to be dismissed. The primary judge of the Federal Circuit Court declined to order a review of the rulings, and the Federal Court was asked to review that decision. The Federal Court was asked to determine whether the Federal Circuit Court's decision was correct and whether there were any circumstances in which the Federal Court should exercise its discretion to order a stay of the proceedings in the Federal Circuit Court.

The court noted that there was no general right to seek review of interlocutory decisions made in the course of a trial, but there were exceptions to that general rule. The court also noted that the Federal Court has discretion to order a stay of proceedings in the Federal Circuit Court if it considered it appropriate to do so. The court found that the Federal Circuit Court had correctly declined to order a review of the interlocutory rulings. The court also found that the circumstances did not warrant the exercise of the Federal Court's discretion to order a stay of the proceedings in the Federal Circuit Court.

The court dismissed the appeal and affirmed the decision of the Federal Circuit Court. The court found that the Federal Circuit Court had correctly exercised its discretion in declining to order a review of the interlocutory rulings. The court also found that there were no circumstances in which the Federal Court should exercise its discretion to order a stay of the proceedings in the Federal Circuit Court. The appeal was dismissed, and the decision of the Federal Circuit Court was affirmed.

Orders