Thiess Pty Ltd v Industrial Magistrate Elizabeth Hall

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.