Schloss v Bell; Bell v Schloss - [2015] ICQ 36

INDUSTRIAL COURT OF QUEENSLAND

CITATION:	Schloss v Bell; Bell v Schloss [2015] ICQ 36
PARTIES:	Schloss, Dennis William (Appellant) v *Stewart Lynn Bell, Commissioner under the Petroleum and Gas (Production and Safety) Act* 2004** (Respondent)
CASE NO: PARTIES: CASE NO:	C/2014/43 *Stewart Lynn Bell, Commissioner under the Petroleum and Gas (Production and Safety) Act* 2004 v Schloss, Dennis William** (Appellant) C/2014/44
PROCEEDING:	Appeal against decision of Industrial Magistrate
DELIVERED ON:	24 December 2015
HEARING DATE:	30 January 2015
MEMBER:	Deputy President O'Connor
ORDERS:	1. In matter C/2014/43: (i) the appeal is allowed; (ii) the guilty verdict is set aside; and (iii) the complaint is dismissed. 2. In matter C/2014/44 the appeal is dismissed.
CATCHWORDS:	INDUSTRIAL MAGISTRATES - APPEAL AGAINST A DECISION OF THE INDUSTRIAL MAGISTRATE - PARTICULARS - SUFFICIENCY OF REASONS - Where a worker suffered injuries following an incident at a coal seam gas well - 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, in respect of the description of ‘operating plant’, the learned Industrial Magistrate determined a description not contained within the complaint or particularised by the prosecution - Whether power to amend the complaint under s 48 of the Justices Act 1886 was enlivened - Whether the learned Industrial Magistrate impliedly amended the complaint - Whether the learned Industrial Magistrate ought to have dismissed the complaint, the prosecution having failed to prove essential elements of the offence - Whether there was a valid Safety Management Plan in operation - Whether a Job Hazard Anaylsis was required to be carried out - Whether a learned Industrial Magistrate erred in failing to give adequate reasons - Whether the learned Industrial Magistrate erred in finding the offence proven - Whether the learned Industrial Magistrate erred in not considering defences - Appeal allowed - Complaint dismissed - Cross-appeal dismissed.
CASES:	Industrial Relations Act 1999, ss 677, 683 Justices Act 1886, ss 43, 47, 48, 49, 158A Petroleum and Gas (Production and Safety) Act 2004, ss 670, 673, 674, 699, 702, 732A, 837 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Bell v Hendry& Ors [2014] ICQ 18 Bell v Schloss [2014] QMC 023 Dare v Pulham (1982) 148 CLR 658 Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219 DPP(Vic) v Kypri (2011) 33 VR 157 Felix v Smeron (1944) 19 ALJ 30 GPI (General) Pty Ltd v Industrial Court of New South Wales (2011) 207 IR 93 Mbuzi v Torcetti [2008] QCA 231 Parhusip v Bell; Bell v Parhusip[2015] ICQ 025 Pettit v Dunkly [1971] 1NSWLR 376 Qld Independent Education Union of Employees v Local Govt Association of Qld Ltd[2015] ICQ 003 Q-COMP v Mana (C/2011/48) - Decision < v Juraszco [1967] Qd R 128 Soulemezis v Dudley (Holdings) Pty Ltd (1987) Strbak v Newton [1989] NSWCA 202 Surman (1996) 85 A Crim R 361

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 36
Decision Date: 24 December 2015

CaseChat Overview and Summary

The Industrial Magistrate's Court considered an appeal and cross-appeal concerning a worker's injuries at a coal seam gas well. The dispute involved the sufficiency of reasons provided by the Industrial Magistrate and the correctness of their findings regarding safety violations under the Petroleum and Gas (Production and Safety) Act 2004. The appellant argued that the Industrial Magistrate erred in their interpretation of "operating plant" and in not dismissing the complaint due to insufficient evidence. Additionally, the appellant claimed that the Industrial Magistrate failed to provide adequate reasons for their decision and did not properly consider certain defences.

The court had to determine whether the Industrial Magistrate had the power to amend the complaint under section 48 of the Justices Act 1886, and if so, whether they did so implicitly. The court also needed to assess whether the prosecution proved essential elements of the offence, whether there was a valid Safety Management Plan in place, and if a Job Hazard Analysis was required. Furthermore, the court examined whether the Industrial Magistrate gave adequate reasons for their findings and whether they erred in finding the offence proven and in not considering defences.

The court concluded that the Industrial Magistrate's decision was indeed flawed. The appeal was allowed, and the complaint was dismissed due to insufficient reasons and errors in the findings. The cross-appeal was dismissed. The court ordered that the appeal be allowed, the guilty verdict set aside, and the complaint dismissed. The court also ordered that the parties be heard on costs in the Industrial Magistrate's Court.

Orders

Orders of the court

1. In matter C/2014/43:

(i) the appeal is allowed;

(ii) the guilty verdict is set aside; and

(iii) the complaint is dismissed.

2. In matter C/2014/44 the appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The cross-appeal is dismissed. Conclusions and Orders The appellant has succeeded in demonstrating that the decision of the Industrial Magistrate is infected with error. The appeal is allowed. I make the following orders: I will hear the parties on costs in the Industrial Magistrate's Court.

Ratio Decidendi

Legal Principle Established

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