Thiess Pty Ltd v Industrial Magistrate Elizabeth Hall

SUPREME COURT OF QUEENSLAND

CITATION:

Thiess Pty Ltd v Industrial Magistrate Elizabeth Hall & Ors [2013] QSC 130

PARTIES:

THIESS PTY LTD
ABN 87 010 221 486

(applicant)

v

INDUSTRIAL MAGISTRATE ELIZABETH HALL
(first respondent)
THE PRESIDENT OF THE INDUSTRIAL COURT OF QUEENSLAND, PRESIDENT D R HALL
(second respondent)
ADAM JOHN LOW

(third respondent)

FILE NO/S:

BS 11568 of 2012

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

3 April 2013

JUDGE:

Boddice J

ORDER:

The application is dismissed. I shall hear the parties as to the form of orders, and as to costs.

CATCHWORDS:

MAGISTRATES – GENERALLY – POWERS AND DUTIES – IMPLIED OR INHERENT POWERS - where the third respondent made a complaint alleging the applicant breached obligations imposed by the Workplace Health and Safety Act 1995 (Qld) – where the complaint and summons contained alternative charges – where the applicant contended the complaint failed to comply with the requirement of s 43 of the Justices Act 1886 (Qld) and sought orders requiring the third respondent elect one of the offences – where the Industrial Magistrate dismissed the application but held the two alleged offences were not true alternatives – where the third respondent was granted leave to delete the words “in the alternative” – where the applicant appealed that decision to the Industrial Court – where the appeal was dismissed finding the words “in the alternative” had no legal effect – where the applicant sought judicial review of that decision – where it was held that s 43 does not authorise two matters of complaint to be pleaded in the alternative – where the applicant made application to the Industrial Magistrates Court for the amended complaint to be struck out – where the first respondent dismissed the application but held the prosecution would be called upon to elect one charge on which to proceed – where on appeal the second respondent held that although s 43(3)(a) and s 43(4) did not apply, the Industrial Magistrates Court had an implied power to strike out the charge on which the complainant elected not to proceed – where the applicant contends s 43 and 48 contain specific powers in relation to election and amendment – where the applicant contends an implied power of election or amendment would be inconsistent with the specific provisions of the Act - where the applicant seeks orders in the nature of prohibition and/or certiorari and declaratory relief in respect of the orders made by the first and second respondents – whether an amendment of the complaint was authorised by s 43 – whether the Industrial Magistrates Court has the express or implied power to cure any defect in the amended complaint

Justices Act 1886 (Qld) s 43, s 48
Workplace Health and Safety Act 1995 (Qld)

Edwards v Jones [1947] KB 659, distinguished
Grassby v R (1989) 168 CLR 1; [1989] HCA 45, cited
Higgins v Comans and Anor (2005) 153…

CaseChat Overview and Summary

Thiess Pty Ltd brought an application for judicial review in the Supreme Court of Queensland against the decision of the Industrial Court that dismissed its appeal against the Industrial Magistrates Court. The underlying dispute began when the third respondent, an employee of Thiess, made a complaint alleging that Thiess breached its obligations under the Workplace Health and Safety Act 1995 (Qld). The complaint and the summons contained alternative charges, which Thiess argued failed to comply with the requirement of section 43 of the Justices Act 1886 (Qld), and sought orders requiring the third respondent to elect one of the offences. The Industrial Magistrate dismissed the application but held that the two alleged offences were not true alternatives. The third respondent was granted leave to delete the words “in the alternative.” The Industrial Court dismissed the appeal, finding the words “in the alternative” had no legal effect. Thiess sought judicial review of that decision, contending that section 43 of the Justices Act did not authorise two matters of complaint to be pleaded in the alternative. The Industrial Magistrates Court dismissed the application to strike out the amended complaint but held that the prosecution would be called upon to elect one charge on which to proceed. On appeal, the Industrial Court held that although section 43(3)(a) and section 43(4) did not apply, the Industrial Magistrates Court had an implied power to strike out the charge on which the complainant elected not to proceed.

The legal issues before the court were whether an amendment of the complaint was authorised by section 43 of the Justices Act and whether the Industrial Magistrates Court has the express or implied power to cure any defect in the amended complaint. The court held that section 43 does not authorise two matters of complaint to be pleaded in the alternative. However, it held that the Industrial Magistrates Court has an implied power to strike out the charge on which the complainant elected not to proceed. The court held that the Industrial Magistrates Court had the power to strike out the alternative charge and that this power was not inconsistent with the specific provisions of the Justices Act.

The application for judicial review was dismissed. The court noted that it would hear the parties as to the form of orders and as to costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Thiess Pty Ltd v Industrial Magistrate Elizabeth Hall & Ors [2013] QSC 130
PARTIES:	THIESS PTY LTD ABN 87 010 221 486 (applicant) v INDUSTRIAL MAGISTRATE ELIZABETH HALL (first respondent) THE PRESIDENT OF THE INDUSTRIAL COURT OF QUEENSLAND, PRESIDENT D R HALL (second respondent) ADAM JOHN LOW (third respondent)
FILE NO/S:	BS 11568 of 2012
DIVISION:	Trial Division
PROCEEDING:	Originating Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	28 May 2013
DELIVERED AT:	Brisbane
HEARING DATE:	3 April 2013
JUDGE:	Boddice J
ORDER:	The application is dismissed. I shall hear the parties as to the form of orders, and as to costs.
CATCHWORDS:	MAGISTRATES – GENERALLY – POWERS AND DUTIES – IMPLIED OR INHERENT POWERS - where the third respondent made a complaint alleging the applicant breached obligations imposed by the Workplace Health and Safety Act 1995 (Qld) – where the complaint and summons contained alternative charges – where the applicant contended the complaint failed to comply with the requirement of s 43 of the Justices Act 1886 (Qld) and sought orders requiring the third respondent elect one of the offences – where the Industrial Magistrate dismissed the application but held the two alleged offences were not true alternatives – where the third respondent was granted leave to delete the words “in the alternative” – where the applicant appealed that decision to the Industrial Court – where the appeal was dismissed finding the words “in the alternative” had no legal effect – where the applicant sought judicial review of that decision – where it was held that s 43 does not authorise two matters of complaint to be pleaded in the alternative – where the applicant made application to the Industrial Magistrates Court for the amended complaint to be struck out – where the first respondent dismissed the application but held the prosecution would be called upon to elect one charge on which to proceed – where on appeal the second respondent held that although s 43(3)(a) and s 43(4) did not apply, the Industrial Magistrates Court had an implied power to strike out the charge on which the complainant elected not to proceed – where the applicant contends s 43 and 48 contain specific powers in relation to election and amendment – where the applicant contends an implied power of election or amendment would be inconsistent with the specific provisions of the Act - where the applicant seeks orders in the nature of prohibition and/or certiorari and declaratory relief in respect of the orders made by the first and second respondents – whether an amendment of the complaint was authorised by s 43 – whether the Industrial Magistrates Court has the express or implied power to cure any defect in the amended complaint Justices Act 1886 (Qld) s 43, s 48 Workplace Health and Safety Act 1995 (Qld) Edwards v Jones [1947] KB 659, distinguished Grassby v R (1989) 168 CLR 1; [1989] HCA 45, cited Higgins v Comans and Anor (2005) 153…