Stone v Guli; Stone v Smith; Stone v Mount Isa Mines Limited & Anor

[2021] HCATrans 147

[2021] HCATrans 147

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B5 of 2021

B e t w e e n -

MARK DOUGLAS STONE

Applicant

and

NATHAN LEIGH GULI

Respondent

Office of the Registry
  Brisbane  No B6 of 2021

B e t w e e n -

MARK DOUGLAS STONE

Applicant

and

ASHLEY ROBIN SMITH

Respondent

Office of the Registry
  Brisbane  No B7 of 2021

B e t w e e n -

MARK DOUGLAS STONE

Applicant

and

MOUNT ISA MINES LIMITED (ACN 009 661 447)

First Respondent

MICHAEL WESTERMAN

Second Respondent

Applications for special leave to appeal

KIEFEL CJ
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO BRISBANE

ON FRIDAY, 10 SEPTEMBER 2021, AT 11.31 AM

Copyright in the High Court of Australia

____________________

MR J.M. HORTON, QC appears with MS E. HOIBERG for the applicant in each matter.  (instructed by Holding Redlich Lawyers)

MR J.D. McKENNA, QC appears for the respondents in each matter.  (instructed by Herbert Smith Freehills, DWF (Australia) and MinterEllison)

KIEFEL CJ:   Yes, Mr Horton.

MR HORTON:   Yes, your Honour, at the outset there was an administrative matter which was a need for a slight extension of time.  There were some features which have been described in an affidavit which meant we were a few days late.

KIEFEL CJ:   Yes, is that opposed, Mr McKenna?

MR McKENNA:   No, it is not, your Honours.

KIEFEL CJ:   Yes, you have that extension, Mr Horton.

MR HORTON:   Thank you, your Honours.  Your Honours, the court below decided the power to make a complaint under the Justices Act was not something that was delegable.  It did so on the basis of finding that that was something which was personal in nature.  The problem which we say arises – the error is articulated really best at application book 180 in our application for special leave at about line 20 by reference to the observations of Chief Justice Gibbs and Justices Mason and Wilson in Rohde v Director of Public Prosecutions 161 CLR 119 at 125 and 126 – is really this, that the power can be separated in a delegation sense from the conditions for its exercise.

So here we accept that the complainant of course must satisfy himself or herself of the commission of the elements at a prima facie level, but that does not preclude having regard to the general principles, particularly those in relation to delegation of someone else holding the power ultimately.

Can we take your Honours very briefly to an example of a complaint. At application book page 6 the preamble you will see there is in the name of the complainant, here the delegate, and he makes clear that he is acting, at least purportedly, as a delegate under the powers of delegation which the Chief Executive has in section 257 of the Mining and Quarrying Safety and Health Act 1999. 

It is important, we say, that that has been made known because there can be no mistake then about the base upon which the matter is proceeding, that is, so long as it is simply made clear that there is a principal or a delegator here and that these powers being taken here are pursuant to that. 

At application book page 170 in the reasons of Justice Davis in the Court of Appeal, with whom the other members of the court agreed, at paragraph [84] we articulate this as what we see as the error.  Section 257 here was the power of delegation.  A plenary delegation was given by the Chief Executive of all the power the Chief Executive has.  But the error his Honour made, in our respectful submission, is there at the second sentence:

It does not contemplate the authorisation of the exercise of a power which is not a power of the chief executive.

KEANE J:   Mr Horton, that rather focuses attention on the circumstance that this application concerns the interpretation of this particular provision of the Queensland statute which has now been interpreted by the Court of Appeal in circumstances where it is very hard to see what general principle is at issue before us.  It draws the obvious query as to whether, if the interpretation of this provision that the Court of Appeal has given is unsatisfactory, then the obvious remedy is legislative action rather than asking us to repeat the exercise of trying to work out the nuances of this statutory language.

MR HORTON:   Could I answer that in two ways, your Honour.  The first is this.  Parliament has acted in section 27A of the Acts Interpretation Act in a way which, in effect, is consistent across the country.  That is, since the 1970s, at least, in Queensland, there has been a clear statement of a delineation between a delegator and a delegate, that one can hold the power, give it to another.  It is as if the delegator was exercising it, the states of mind needed to be formed of those by the delegate. 

So, we say in a way, no statutory amendment is required because the statute has already been made to give that effect, and the same, of course, was found by their Honours in Rohde v Director Public Prosecutions, which we referred to at the outset, and their Honours there considered it was plainly the case that that section assisted.

On the point of general application, the difficulty is this. His Honour does not limit this judgment to just those particular provisions, which, in any event, are generic in nature. Section 257 is a perfectly general, perfectly orthodox, perfectly frequent power of delegation, and his Honour’s comments in respect of the Justices Act are again perfectly general in relation to a very general act of regular and frequent invocation in Queensland. 

The difficulty is this, that both the nature of delegation and that fact that engages the Justices Act are both things which can be expected frequently to recur.  We, with respect, do not see these provisions as unique, first of all, in statutory language, whether it be in Queensland or elsewhere, and secondly it is in relation to a statute which is regularly to be invoked. 

Your attention, your Honours, has been drawn by our learned friends to the fact there has been some statutory amendment, but again, that really highlights the difficulty here.  There is now a WHS prosecutor who does the more serious of these offences, but again, he has a power delegation in his Act.

So, what has become a perfectly usual modern occurrence, that is, to delegate one’s powers perhaps in large organisations, including the power to take criminal proceedings, is not something which we say is limited on the facts of this case, or indeed likely to be.  It is really asking this Court to correct what we say is an error, by reference to these orthodox principles of the general law which find expression, including in Queensland statutory law, but are now around the country.

Can we take you to an example of that, your Honours, application book 169, in his Honour’s reasons, paragraph [79]:

The personal nature of the position of a complainant –

His Honour is making general observations about the status that a complainant must have under the Justices Act, not just for the purpose of the Mining and Quarrying Safety and Health Act, but generically for the purposes of the Justices Act1886.  His Honour goes on, over the page in application book 170, to again make these statements by reference generally to not only the Justices Act but the power of delegation which is engaged here, and there are findings below that, to the extent it was lawful, possible, that my client acted indeed as a delegate, that he had the status of a delegate.

If this decision is right, it extends beyond merely the facts of this case, because it would say that criminal proceedings under the Justices Act can never be something that is delegated to a complainant.  That is, his Honour’s holding is that wide, that one cannot be a complainant and a delegate, one must be a complainant.  That rather sits uncomfortably, in our respectful submission, with institutions now having these regulatory powers, but still relying upon individuals, and quite properly so, to form states of mind and belief.

His Honour was at pains to point out, perfectly correct, in our respectful submission, that one must make, to some extent, that complainant accountable for what they are swearing to, given its serious consequences.  But the two are not, in our respectful submission, quite so separate as his Honour Justice Davis rather suggests.

KIEFEL CJ:   Mr Horton, what do you say to the respondent’s argument that the special leave question, as is framed by the applicants, is wider than was considered by the Court of Appeal?

MR HORTON:   Yes, well, obviously, your Honour, the Court of Appeal judgment arose against a set of particular circumstances, but as resolved, it was resolved really on two provisions.  One was 257 of the Mining and Quarrying Safety and Health Act, which is the usual generic delegation clause, so on no view is that something that is unique to this field of legislative activity.  It is, in fact, a common formulation invoked regularly.

Second, it concerns the nature, in a generic sense, of complaints under the Justices Act, so again, neither of those, although they arose in the context, of course, of a particular statute, are ones which had any particular limitation to the facts and the particular statutory provision which arose.  We rather see it as a more general statement of practice and procedure, form and manner, of the way in which complaints are…..in Queensland, and we respectfully suggest that is the way this decision would otherwise be read.

Your Honours, it is raised against us that section 27A(8) was not raised below.  It was of course referred to in the magistrate’s decision - and so the magistrate at least was cognisant of it – and sets out that provision in full and does so at application book 98. 

Second, in any event, of course, the provision was definitely referred to in both the Industrial Court before his Honour Justice Martin and in the Court of Appeal.  We accept that the provision was not itself agitated, but one might have some sympathy for that, given this, that the courts beforehand had taken rather different approaches to the question.  The magistrate, of course, had found in favour of my client, and Justice Martin had adopted and applied the principle in Anthony Hordern in connection with reading the other provision which is referred to in the material, and Justice Davis took an altogether different approach.  So, one can have sympathy not being able to predict, if you like, the particular base upon which the court was to resolve the matter. 

Finally, your Honours, we do rely upon that decision of Rohde v Director of Public Prosecutions as an example of where similar problems had arisen about whether a provision of the Victorian statute could be invoked as the basis for an appeal by the Commonwealth Director of Public Prosecutions. 

If your Honours have the case there, it appears at the bottom of 125 of volume 161 of the Commonwealth Law Reports, going over to page 126 - Chief Justice Gibbs with Justices Mason and Wilson - resolving entirely the same difficulty as arose here, that is, a power granted which

might still have conditions to be fulfilled but their Honours, as you will see at page 126, had no difficulty with the understanding that what is, in effect, a cognate provision of section 27A places the matter “beyond doubt”, at about point 1 of the page there.

So, the difficulty which the court saw below is one which was readily reconcilable by the modern general law that has developed and the concern of our client is to ensure that in Justices Act matters, they are kept confidently reconciled with the modern law about delegation, the modern general law, something which we see also in the Director of Public Prosecutions Acts around the country.  Although they normally relate to indictable offences, the same applies. 

The Director himself or herself might be the repository of the primary power, but others might have authority to sign or present indictments.  Now, obviously that would involve not only the formation of states of mind, but it will also involve acting cognisant of the power which is derived from the delegator.  In criminal law now across the country that would be regarded as unexceptional.  Yet, in the context of the Justices Act in Queensland, with respect, we have what seems to be a rather disconsonant approach.  Unless there are further questions, your Honours, they are our submissions.

KIEFEL CJ:   Yes, thank you, Mr Horton.  Yes, Mr McKenna.

MR McKENNA: Your Honours, as we read the judgment of the Court of Appeal, it did not consider or decide an abstract question about whether criminal prosecutions could be brought by a delegate, and your Honours can test that proposition this way, by considering how this case might have gone if section 234 had not expressly stated that a prosecution could be brought either by an authorised person or by a delegate.

If it had said that expressly, no one could sensibly have suggested that provision of that kind would not operate according to its terms, and there is nothing in the judgment that suggests to the contrary.  The problem in the present case was not a conceptual problem about whether delegates are capable of prosecuting under the Justices Act, it was a specific problem about the particular provisions of the Mining Safety Act and how they should be interpreted.

The problem arose because section 234, which was the specific provision dealing with prosecutions, located in the division of the Act headed “Proceedings”, only appears to contemplate that prosecutions can be commenced by one, not two, specified officers, or an appropriately qualified person who has been authorised in writing by the CEO. So, on its face, the provision that seemed to be directed to the question of who can prosecute does not seem to contemplate that delegates could be used to prosecute, certainly not in their own name.

It is only by going to a quite different part of the Act, the part dealing with administration, that one can find the power of delegation, which is in section 257. That provision contains no reference back to section 234. It merely creates a general power in the Minister, or the CEO, to delegate their powers under the Act, and it was this power that was exercised by the CEO in the present case, by conferring all of the powers under the Act upon two public service employees, including Mr Stone. It was, Mr Stone as a delegate, acting in his own name and not in the name of the delegator, who purported to institute proceedings.

The problem – I am sorry for that long‑winded explanation, but that frames the problem. The problem that was addressed in all three levels of the court that have considered this matter is how these two provisions relate to each other. How do 234 and 257 relate to each other, and more specifically, what the Court of Appeal was looking at was whether there was some underlying logic in the statute that explained why the distinction was being drawn between a process of authorisation under section 234 and a process of delegation under 257.

In a moment, your Honours, I will take you to the reasons of the Court of Appeal to see how that was the way they approached the matter, and how they used this question, used the analysis to work out whether there was underlying logic that justified this distinction between the two, but the key points I really want to make in our submissions are these.  First, this case has not to date, and does not now, involve a dispute about general principles of interpretation.  Secondly, this case has not to date, and does not now, involve some particular issue about the legal concept of delegation, whether at common law or under the Acts Interpretation Act.

Thirdly, this case has not to date, and does not now, involve a dispute about the framework for prosecutions under the Justices Act.  Fourthly, what this case is really about is an application of these general principles to this specific statute, and it really has no implications for prosecutions generally.  It has no implications as to whether DPP statutes can delegate to the office of the DPP the power to decide and pursue, in the name of the DPP, prosecutions.

Can I make a final point?  It is not even obvious to us that this case has any significant implications for pending or future prosecutions under the Mining Safety Act.  The reason we make that submission, your Honours, is that firstly there would be amendments to this Act in 2020 which now, as our learned friend pointed out, vests the power of prosecution in a work, health and safety prosecutor which is a specialist prosecutor with their own legislative framework.  It gives them clear powers to delegate, the powers to decide whether to prosecute to officers of the office of the prosecutor. 

So, they are in the same position as DPPs about this and we do not contend - and we do not see that the Court of Appeal has any difficulty with those provisions being given their express and obvious effect.  That concerns prosecution since 2020.

As to earlier prosecutions, the only practical problem that could exist concerns stale prosecutions.  What I mean by stale prosecutions are one where the relevant limitation period is up and so the prosecution cannot be reformulated to comply with the law as pronounced by the Court of Appeal. 

Now, since the decisions in this case have been handed down, we cannot see from the court records that there has been a flurry of anyone relying upon these decisions to effect prosecutions.  In fact, we cannot see that this decision has been referred to by anybody since it was handed down.  So, it does not seem to be a case that has widespread or ongoing implications.

Could I take you, please, to the judgment of the Court of Appeal to make good the proposition that it is not a judgment dealing with conceptual issues but dealing with a very practical issue.  The starting point is really page 161 of the application book.  Under the heading “The current appeal” at – under that heading at paragraph [37] we see his Honour Justice Davis explaining that:

the disposal of the appeal turns on the construction –

of the Act, in particular the two provisions I have mentioned. His Honour notes two particular issues arise. The first one is whether the specific power under section 234 falls outside the general power in 257, the so‑called Anthony Hordern point.  Then the second point that he has identified is whether the power of the CEO is capable of delegation by the terms of 257.

At first blush, this way of describing the second point may cause you to think that the issue being addressed is concerned whether a power to prosecute is theoretically capable of delegation.  But as you go on to read the reasoning in the judgment it becomes quite clear that this is not the issue that is being addressed.  The issue is more clearly described as whether section 257 in fact empowers delegation of a power to prosecute, not whether it is theoretically possible.

So, moving ahead quickly, you will see that there is a heading “The impact of the Anthony Hordern principle”, and that is where his Honour deals with the other issues in the case that we have mentioned as being issues that we would wish to agitate again if this matter were to go forward.  But you will see at paragraph [60] of the judgment that his Honour did not find those considerations of assistance in this case. 

Then we go to the next heading, and this is the heading where his Honour frames the question “Is the authority to prosecute in s 234(5)(b) a power referred to in s 257?” and that aptly describes the question that his Honour was posing. Between paragraphs [61] and [64] his Honour considers a discrete question which again we were successful on before the Industrial Court about whether the reference in section 257 to delegating a power under the Act can be read as referring to a provision like section 234 that does not actually create a power, but merely imposes limits on a power created elsewhere.

But your Honour does not need to resolve that question, because at paragraph [65] he observes that:

The phrase “may only” is not the key to the issue of construction which arises here.  It is necessary to consider the notion of the power or right which was allegedly delegated pursuant to s 257 and determine whether on a proper construction of s 257 the power or right is delegated –

The point his Honour is making is that, in resolving the proper relationship between sections 234 and 257, it is helpful to consider the underlying subject matter which is being regulated by one or both of these provisions, and here the subject matter was the right to prosecute under the Justices Act.  So, by understanding the nature of that right, it can help you understand whether there is any underlying logic in the Mining Safety Act distinguishing between authorisation and delegation. 

In paragraph [66], his Honour addresses the distinction at common law between authorisation and delegation, and that seems to be an appropriate summary of the law.  Then, in paragraph [67] his Honour notes that the common law concept of delegation has been Acts Interpretation Act, and again that seems to be an apt and appropriate reference to include. 

Our learned friends note that his Honour does not refer to subsection (8), but as you will see from the reasoning that follows, that was not germane to his Honour’s reasoning about this issue.  An important paragraph is paragraph [68], where his Honour makes the point that:

for the reasons which follow the distinction between the power of delegation in s 257 and the power to authorise under s 234(5)(c) is logical.

That is what the rest of the reasoning is dealing with, the logic of drawing this distinction.  So, between paragraphs [69] and [81], his Honour turns to the Justices Act and analyses the nature of the power to prosecute. 

In our respectful submission, he correctly observes that the nature of that power is personal to the party who becomes a party to the proceeding, and his Honour notes at paragraph [81] that the Justices Act requires the complainant to swear the complaint in his or her own name and then prosecute it in his or her own name.  All that analysis seems correct, and it creates the subject matter upon which the Mining Safety Act operates. 

His Honour then, in paragraph [82] and in the first few lines of [83] turns to the process of authorisation, and explains why, in the light of the framework we have created by the Justices Act, it is logical that section 234 should choose a process of authorisation to define the range of persons who are entitled to prosecute, and that is because a person who is authorised prosecutes in the exercise of his or her own name and the exercise of a power that they personally have to do so.

It is then in the remaining part of the judgment that his Honour turns to the process of delegation, and explains why, in the light of the Justices Act, it would be logical for the Mining Safety Act to treat the exercise of a power of delegation differently.  In paragraph [83], five lines down, there is a sentence beginning “He may not”:

He may not, under s 257, delegate the right –

That is the conclusion that his Honour reached about this, and in the sentences that follow in paragraphs [83] and [84], his Honour sets out the reasons for that conclusion.  There are essentially four steps in the reasons.  First, that under the terms of the Justices Act, it is not contemplated that a person swearing a complaint would be doing so in the name of anyone else.  Secondly, that under the terms of the Justices Act, it is not contemplated that a person swearing a complaint would be exercising a power or right of another.

Thirdly, however, as we have seen, the theory of delegation under section 27A of the Acts Interpretation Act is that the acts of a delegate are taken to have been done on behalf of somebody else, and they are properly done in the name of the delegator, which of course was not done in the present case. 

So, that leads you to the conclusion his Honour reaches, which is that, in the framework of this particular Act, it makes sense that section 234 would focus on authorisation and that the distinction drawn with delegation

makes sense in the construction of the Act and leads you to construe the two provisions as operating separately.

Your Honour, that reasoning, in our respectful submission, is logical, appropriate and supported by the other reasons that the Industrial Court gave and does not have implications for prosecutions generally, and it is not even clear that they have implications for pending prosecutions under this statute.  They are our submissions, your Honour.

KIEFEL CJ:   Thank you, Mr McKenna.  Anything by way of reply, Mr Horton?

MR HORTON:   Yes, just very briefly.  We have said in our application, there are a lot of prosecutions which hang off this, besides those number which are presently before the court.  Your Honours can see that there is a delegation provision now in the Workplace Health and Safety Prosecutor’s Act, so there are others in that sense that are affected, so it is not just the case that it is only the ones before your Honour. 

What is more important is that the amendments which are before your Honours on application book 202 do not deprive my present client of the ability to prosecute.  Only serious offences have gone to the WHS prosecutor, as well as others, but our present…..retain that for offences other than serious offences, so it is not as if they have divested themselves of that power.

In terms of our learned friend’s comment that the issue is really something that is practical and specific, we would draw your Honours’ attention at application book 170 to reasons, paragraph [83], the last sentence where his Honour really disclaims any application of 27A of the Acts Interpretation Act:

They do not do so as a delegate, in the sense explained in s 27A of the Acts Interpretation Act.

That, we say, is irreconcilable with the general law with that provision and, of course, with Rohde’s Case, to which we have taken your Honours.  This analysis as it boils down at this point, his Honour is really speaking now not about the interaction of provisions but about section 257 and the bare fact, in a general setting, that one (a) does not have regard to section 27A and (b) there is no possibility there for a delegation.  Yet 27A would have resolved his Honour’s difficulties that were confronting him at that stage.

If it was a case of section 234, of course, we would run into a difficulty of agency. Now, this is not an agency case, and we might be presenting to your Honours differently on the base of a Carltona agency or

something of that kind. But this is squarely a delegation we would show that came down to 257, not about section 234 and principles of authorisation or agency which might apply.

They are our submissions in reply, your Honours.

KIEFEL CJ:   Yes, thank you, Mr Horton.  The Court will adjourn to consider the course that it will take.

AT 12.02 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.05 PM:

KIEFEL CJ:   In our view the proposed appeal concerns the particular provisions of Queensland statutes and their relationship to each other.  It raises no question of general principle.  Special leave is refused with costs.

The Court will now adjourn.

AT 12.05 PM THE MATTERS WERE CONCLUDED