Rockhampton Regional Council v Cosgrove - [2015] QSC 22

SUPREME COURT OF QUEENSLAND

CITATION:

Rockhampton Regional Council v Cosgrove & Ors [2015] QSC 22

PARTIES:

ROCKHAMPTON REGIONAL COUNCIL
(Applicant)

v

MAGISTRATE BARRY COSGROVE
(First respondent)

And

JOANNE LILLEY
(Second respondent)

And

LIVINGSTONE SHIRE COUNCIL

(Third Respondent)

FILE NO/S:

S 388/14

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

16 February 2015

DELIVERED AT:

Rockhampton

HEARING DATE:

9 February 2015

JUDGE:

McMeekin J

ORDERS:

The application is dismissed

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GENERALLY – where applicant is continuing local government following de-amalgamation – where third respondent is new local government re-established following de-amalgamation – where complaint made of offence under Workplace Health and Safety Act 2011 (Qld) against applicant by second respondent prior to de-amalgamation – where applicant asserts that proper defendant is third respondent following de-amalgamation – where first respondent found that complaint should continue against applicant rather than third respondent – where applicant seeks order of certiorari quashing decision of first respondent – where applicant applied for judicial review – where applicant seeks declaration that the proper defendant against the complaint is third respondent – whether criminal liability transferred to new local government by transitional provisions in enactments

INTERPRETATION – GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS – GENERAL MATTERS

Acts Interpretation Act 1954 (Qld), s 35C, Schedule 1
Judicial Review Act 1991 (Qld), s 5
Local Government Act 2009 (Qld), s 242
Local Government and Other Legislation Amendment Act 2012 (Qld)
Local Government and Other Legislation Amendment Act 2013 (Qld)
Local Government (De-Amalgamation Implementation) Regulation 2013 (Qld), s 5, s 39, s 45, s 46, s 47, s 48, s 49, s 50, s 51
Occupational Health & Safety Act 1983 (NSW)
Penalties and Sentences Act 1995 (Qld), s 9, s 12
Workplace Health and Safety Act 2011 (Qld), s 3, s 14, s 19, s 32, s 232, s 253

Attorney-General (NSW) v Commonwealth Savings Bank (1986) 160 CLR 315 cited
Beckwith v The Queen (1976) 135 CLR 569 cited
Butler v Fife Coal Co [1912] AC 149 cited
Byrne v Garrisson [1965] VR 253 cited
Chakera v Kuzamanovic [2003] VSC 92 cited
Country Energy v Malone [2005] NSWIRComm 78 applied
George Hudson Ltd v Australian Timber Workers Union [1922] 32 CLR 413 cited
Joye v Beach Petroleum NL (1996) 67 FCR 275 cited
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509 cited
Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2010] QCA 119 cited
R v Deemal [2010] 2 Qd R 70 cited
R v Adams (1935) 53 CLR 563 cited
Re The Commercial Bank of Australia Ltd (1893) 19 VLR 333 cited
Roads Corporation v Gerkens (1993) 6 VAR 363 cited

COUNSEL:

P Roney QC with R Byrnes for the applicant

M J Byrne QC with T Cvetkovski for the second respondent

M Hinson QC for the third respondent

SOLICITORS:

McCullough Robertson for the applicant

No appearance for the first respondent

Workplace Health and Safety Queensland for…

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] QSC 22
Decision Date: 16 February 2015

CaseChat Overview and Summary

The Rockhampton Regional Council sought judicial review of a decision by the first respondent, who found that the complaint against it regarding an offence under the Workplace Health and Safety Act 2011 (Qld) should continue, rather than being transferred to the third respondent, the new local government re-established following the de-amalgamation of the applicant. The applicant argued that the proper defendant in the complaint should be the third respondent, and sought a declaration to that effect as well as an order of certiorari quashing the decision of the first respondent.

The legal issues before the court included the interpretation of the transitional provisions in the relevant enactments to determine if criminal liability had transferred to the new local government following the de-amalgamation. The court considered whether these provisions meant that the third respondent, as the new local government, was the proper defendant in the complaint, or if the applicant remained liable. The court also needed to assess the correctness of the first respondent's decision in maintaining the complaint against the applicant.

The court found that the transitional provisions in the enactments did not explicitly transfer criminal liability to the new local government. The court held that the applicant remained the proper defendant in the complaint as the original entity charged with the offence. Consequently, the court dismissed the application for judicial review and found that the first respondent's decision was correct. The court made no further declarations or orders as the application was dismissed.

Orders

Orders of the court

The application is dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Rockhampton Regional Council v Cosgrove & Ors [2015] QSC 22
PARTIES:	ROCKHAMPTON REGIONAL COUNCIL (Applicant) v MAGISTRATE BARRY COSGROVE (First respondent) And JOANNE LILLEY (Second respondent) And LIVINGSTONE SHIRE COUNCIL (Third Respondent)
FILE NO/S:	S 388/14
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court Rockhampton
DELIVERED ON:	16 February 2015
DELIVERED AT:	Rockhampton
HEARING DATE:	9 February 2015
JUDGE:	McMeekin J
ORDERS:	The application is dismissed
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GENERALLY – where applicant is continuing local government following de-amalgamation – where third respondent is new local government re-established following de-amalgamation – where complaint made of offence under Workplace Health and Safety Act 2011 (Qld) against applicant by second respondent prior to de-amalgamation – where applicant asserts that proper defendant is third respondent following de-amalgamation – where first respondent found that complaint should continue against applicant rather than third respondent – where applicant seeks order of certiorari quashing decision of first respondent – where applicant applied for judicial review – where applicant seeks declaration that the proper defendant against the complaint is third respondent – whether criminal liability transferred to new local government by transitional provisions in enactments INTERPRETATION – GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS – GENERAL MATTERS Acts Interpretation Act 1954 (Qld), s 35C, Schedule 1 Judicial Review Act 1991 (Qld), s 5 Local Government Act 2009 (Qld), s 242 Local Government and Other Legislation Amendment Act 2012 (Qld) Local Government and Other Legislation Amendment Act 2013 (Qld) Local Government (De-Amalgamation Implementation) Regulation 2013 (Qld), s 5, s 39, s 45, s 46, s 47, s 48, s 49, s 50, s 51 Occupational Health & Safety Act 1983 (NSW) Penalties and Sentences Act 1995 (Qld), s 9, s 12 Workplace Health and Safety Act 2011 (Qld), s 3, s 14, s 19, s 32, s 232, s 253 Attorney-General (NSW) v Commonwealth Savings Bank (1986) 160 CLR 315 cited Beckwith v The Queen (1976) 135 CLR 569 cited Butler v Fife Coal Co [1912] AC 149 cited Byrne v Garrisson [1965] VR 253 cited Chakera v Kuzamanovic [2003] VSC 92 cited Country Energy v Malone [2005] NSWIRComm 78 applied George Hudson Ltd v Australian Timber Workers Union [1922] 32 CLR 413 cited Joye v Beach Petroleum NL (1996) 67 FCR 275 cited K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509 cited Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2010] QCA 119 cited R v Deemal [2010] 2 Qd R 70 cited R v Adams (1935) 53 CLR 563 cited Re The Commercial Bank of Australia Ltd (1893) 19 VLR 333 cited Roads Corporation v Gerkens (1993) 6 VAR 363 cited
COUNSEL:	P Roney QC with R Byrnes for the applicant M J Byrne QC with T Cvetkovski for the second respondent M Hinson QC for the third respondent
SOLICITORS:	McCullough Robertson for the applicant No appearance for the first respondent Workplace Health and Safety Queensland for…