Williamson v ADG Engineers (Aust) Pty Ltd - [2018] QDC 195

DISTRICT COURT OF QUEENSLAND

CITATION:

Williamson v ADG Engineers (Aust) Pty Ltd [2018] QDC 195

PARTIES:

IAN WILLIAMSON

(Appellant)

v

ADG Engineers (Aust) Pty Ltd

(Respondent)

FILE NO/S:

D76/17

DIVISION:

Criminal

PROCEEDING:

Appeal under Justices Act 1886 s 222

ORIGINATING COURT:

Magistrates Court at Ipswich

DELIVERED ON:

25 September 2018

DELIVERED AT:

Ipswich

HEARING DATE:

1 May 2018

JUDGE:

Lynch QC DCJ

ORDER:

1.   The order of the Magistrate dismissing the complaint is set aside.

2.   The complaint is remitted to the Magistrates Court for determination according to law.

3.   The appellant pay the respondent’s reasonable costs of an incidental to the appeal.

CATCHWORDS:

CRIMINAL LAW – APPEAL – PARTICULAR GROUNDS OF APPEAL – SUMMARY DISMISSAL OF COMPLAINT UPON NON-APPEARANCE OF COMPLAINANT – where a complaint under the Work Health and Safety Act 2011 was issued – where the legal representative of the complainant failed to appear on the first return date – where the legal representative was an employee of Workplace Health and Safety Queensland – where the defendant’s legal representative appeared and sought an adjournment – where presiding Magistrate ordered the complaint be struck out – whether the order dismissing the complaint was authorised by s 141 of the Justices Act 1886 – whether s 141 required Magistrate to consider if proper reason existed for adjourning the hearing – whether Magistrate erred in not adjourning complaint for further mention or hearing – whether s 141 requires consideration of all circumstances and public interest

Legislation
Justices Act 1886 ss 141, 142, 142A, 147, 147A 222, 223
Work Health and Safety Act 2011 ss 22, 32

Cases
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Fox v Percy (2003) 214 CLR 118
House v The King (1936) 55 CLR 499
James v Williams; Ex parte James [1967] Qd R 496
Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30
Newman v Foamaction Pty Ltd [2001] QIC 48
O’Sullivan v Farrar (1989) 168 CLR 210
R v EL [2017] QCA 135
R v Spina [2012] QCA 179
Shield v Topliner Pty Ltd [2005] 1 Qd R 551
Waltham v Wadda Farms Pty Ltd [2007] QIC 6

COUNSEL:

S A McLeod for the appellant
K A Mellifont QC for the respondent

SOLICITORS:

Workplace Health and Safety for the appellant
Colin Biggers & Paisley for the respondent

Appeal

This is an appeal, pursuant to s 222 of the Justices Act 1886, against an order of a Magistrate striking out a complaint of an alleged offence against s 32 of the Work Health and Safety Act 2011. The complaint alleged as follows:
(T)hat on 15 July 2015, at Springfield in the Magistrates Courts District of Ipswich appointed under the Justices Act 1886, ADG Engineers (Aust) Pty Ltd (A.C.N. 131 876 143), being a company duly incorporated according to law and a person who had a health and safety duty under section 22 (2) of the Work Health and Safety Act 2011, failed to…

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.

Continue reading Williamson v ADG Engineers (Aust) Pty Ltd

Details

AGLC: Williamson v ADG Engineers (Aust) Pty Ltd [2018] QDC 195
Case: [2018] QDC 195
Decision Date: 25 September 2018

CaseChat Overview and Summary

Williamson was the appellant and ADG Engineers (Aust) Pty Ltd was the respondent in the matter before the Court of Appeal. The appellant had lodged a complaint under the Work Health and Safety Act 2011 against the respondent. The matter was called up for hearing before a Magistrate. The legal representative for the appellant, who was an employee of Workplace Health and Safety Queensland, failed to appear on the first return date. The respondent’s legal representative appeared and sought an adjournment due to the absence of the complainant’s representative. The Magistrate ordered the complaint to be struck out and dismissed it. The appellant sought to appeal the Magistrate’s decision.

The appeal centred on whether the Magistrate was correct in law to dismiss the complaint without an adjournment, and whether the order was authorised by s 141 of the Justices Act 1886. The appellant contended that the Magistrate was required to consider whether a proper reason existed for adjourning the hearing and erred in not adjourning the complaint for further mention or hearing. The respondent argued that the Magistrate was entitled to dismiss the complaint in the circumstances, and that s 141 did not require consideration of all circumstances and the public interest.

The Court of Appeal held that the Magistrate did not consider whether a proper reason existed for adjourning the hearing and therefore erred in law. The Court found that s 141 required the Magistrate to consider all the circumstances and the public interest. The Court concluded that the Magistrate failed to exercise the discretion granted under s 141 properly and set aside the order dismissing the complaint. The complaint was remitted to the Magistrates Court for determination according to law. The appellant was ordered to pay the respondent’s reasonable costs of the appeal.

The final orders of the Court of Appeal were that the order of the Magistrate dismissing the complaint was set aside, the complaint was remitted to the Magistrates Court for determination according to law, and the appellant pay the respondent’s reasonable costs of the appeal.

Orders

Orders of the court

1. The order of the Magistrate dismissing the complaint is set aside.

2. The complaint is remitted to the Magistrates Court for determination according to law.

3. The appellant pay the respondent’s reasonable costs of an incidental to the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Williamson v ADG Engineers (Aust) Pty Ltd [2018] QDC 195
PARTIES:	IAN WILLIAMSON (Appellant) v ADG Engineers (Aust) Pty Ltd (Respondent)
FILE NO/S:	D76/17
DIVISION:	Criminal
PROCEEDING:	Appeal under Justices Act 1886 s 222
ORIGINATING COURT:	Magistrates Court at Ipswich
DELIVERED ON:	25 September 2018
DELIVERED AT:	Ipswich
HEARING DATE:	1 May 2018
JUDGE:	Lynch QC DCJ
ORDER:	1. The order of the Magistrate dismissing the complaint is set aside. 2. The complaint is remitted to the Magistrates Court for determination according to law. 3. The appellant pay the respondent’s reasonable costs of an incidental to the appeal.
CATCHWORDS:	CRIMINAL LAW – APPEAL – PARTICULAR GROUNDS OF APPEAL – SUMMARY DISMISSAL OF COMPLAINT UPON NON-APPEARANCE OF COMPLAINANT – where a complaint under the Work Health and Safety Act 2011 was issued – where the legal representative of the complainant failed to appear on the first return date – where the legal representative was an employee of Workplace Health and Safety Queensland – where the defendant’s legal representative appeared and sought an adjournment – where presiding Magistrate ordered the complaint be struck out – whether the order dismissing the complaint was authorised by s 141 of the Justices Act 1886 – whether s 141 required Magistrate to consider if proper reason existed for adjourning the hearing – whether Magistrate erred in not adjourning complaint for further mention or hearing – whether s 141 requires consideration of all circumstances and public interest Legislation Justices Act 1886 ss 141, 142, 142A, 147, 147A 222, 223 Work Health and Safety Act 2011 ss 22, 32 Cases Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Fox v Percy (2003) 214 CLR 118 House v The King (1936) 55 CLR 499 James v Williams; Ex parte James [1967] Qd R 496 Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30 Newman v Foamaction Pty Ltd [2001] QIC 48 O’Sullivan v Farrar (1989) 168 CLR 210 R v EL [2017] QCA 135 R v Spina [2012] QCA 179 Shield v Topliner Pty Ltd [2005] 1 Qd R 551 Waltham v Wadda Farms Pty Ltd [2007] QIC 6
COUNSEL:	S A McLeod for the appellant K A Mellifont QC for the respondent
SOLICITORS:	Workplace Health and Safety for the appellant Colin Biggers & Paisley for the respondent