Sunwater Limited v Swift

[2012] QMC 13

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Sunwater Limited & Anor v Swift [2012] QMC 13

PARTIES:

SUNWATER LIMITED

(first applicant)

TRELLEBORG ENGINEERED SYSEMS AUSTRALIA PTY LTD

(second applicant)

v

SARA MAREE SWIFT

(respondent)

FILE NO/S:

MAG231428/09(7), MAG231447/09(1)

DIVISION:

Magistrates Courts - Industrial Magistrate

PROCEEDING:

Application for further and better particulars

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

22 March 2012

DELIVERED AT:

Warwick

HEARING DATE:

22 November 2011

MAGISTRATE:

Lee G

ORDER:

Application for further and better particulars is partly successful

CATCHWORDS:

INDUSTRIAL LAW – OFFENCES – particulars of offence – further and better particulars

Justices Act 1886

Workplace Health and Safety Act 1995

COUNSEL:

R Devlin SC with P McQuade for first applicant

A Glynn SC for second applicant

M Byrne QC with T Cvetkoski for respondent

SOLICITORS:

Holding Redlick for first applicant

Gadens Lawyers for second applicant

Fair and Safe Work Queensland for complainant

1. This is an application by Sunwater Limited (Sunwater) and by Trelleborg Engineered Systems Australia Pty Ltd (Trelleborg) for further and better particulars of pleadings in complaints made under the Justices Act 1886 (JA) and further particulars provided regarding charges under now repealed Workplace Health and Safety Act 1995 (Qld)(WHSA)[1].

   [1] Repealed by section 277 Work Health and Safety Act 2011 (No 18 of 2011) with effect from 1 January 2012;

2. The current applications follow a decision of Industrial Magistrate J McGrath on

   
   

   15 December 2010 refusing applications to permanently stay the complaints on the basis that they failed to plead essential factual ingredients according the principles of common law as restated by the High Court in Kirk v Industrial Relations Commission (NSW) et al (2010) 239 CLR 531; [2010] HCA 1 and considered by Boddice J in NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland [2010] QSC 373. In applying the statements of principle in Kirk and after having considered authorities including Johnson v Miller (1937) 59 CLR 467; [1937] HCA 37 Industrial Magistrate McGrath concluded that the complainant in each case “should provide particulars of the ‘acts or omissions of’ or ‘measures not taken by’ the defendants”.

3. As a result the complainant in each case provided additional particulars consisting of 16 paragraphs over 5 pages for Sunwater and 18 paragraphs over 5 pages for Trelleborg. I will return to these later. These applications are for further and better particulars of those particulars.      

4. The complaints against both applicants arise out of the same incident in which a child who was swimming downstream of a weir drowned after the unexpected rupturing of an inflatable rubberised sock or bag called a fabridam[2] that had been installed on top of a concrete spillway of the weir to increase the weir’s capacity of water storage.

   [2] Also referred to as a “rubber dam” or “inflatable dam” – see the report of an investigation dated 13 November 2009 by Mr Jim Haig;

5. The complaint against Sunwater relevantly pleads:

   ..that on the 23^rd November 2008 at Bedford Weir near Blackwater …SUNWATER…