Industrial Court of Queensland s1

[Extract from Queensland Government Industrial Gazette, dated 16 March, 2007, Vol. 184, No. 11, pages 153-155]

INDUSTRIAL COURT OF QUEENSLAND

Workplace Health and Safety Act 1995 - s. 164(3) - appeal against decision of industrial magistrate

Paul Bradley Waltham AND Wadda Farms Pty Ltd (C/2006/72)

PRESIDENT HALL 7 March 2007

DECISION

On 30 June 2006, Paul Bradley Waltham a Public Officer within the meaning of s. 142(A) of the Justices Act 1886 and an Inspector duly appointed under the provisions of the Workplace Health and Safety Act 1995, made a complaint before a Justice of the Peace, that on 21 July 2005 at Nerada in the Magistrates Court district of Innisfail, Wadda Farms Pty Ltd (Wadda Farms) failed to discharge an obligation imposed upon it by the Workplace Health and Safety Act 1995, contrary to s. 24 of the Act. The obligation was identified as that imposed by s. 28(1) of the Act viz. the obligation to ensure that each of an employer's workers is not exposed to risk to his/her health and safety arising out of the conduct of the employer's business or undertaking. A circumstance of aggravation was alleged, viz. grievous bodily harm caused to Gary George Collings. Wadda Farms was duly summonsed to "...appear at the Industrial Magistrate's Court situated at Edith Street, Innisfail...on 22nd day of August 2006 at 9.30 in the forenoon before an Industrial Magistrate to answer the said complaint and to be further dealt with according to law.". Wadda Farms did appear in answer to the summons on 22 August 2006. The complainant however, did not appear in person, did not appear by legal representative and was not represented by another Inspector. On being made aware of the complainant's absence, the Industrial Magistrate stood the matter down for a relatively brief period whilst other Court business was disposed of. The matter was then called again. Again, there was no appearance by or for the complainant. The Industrial Magistrate ordered "...the charge is struck out and the defendant is discharged.".

It is common ground that the Industrial Magistrate's order was made pursuant to s. 141 of the Justices Act 1886. Section 141 provides:

"141 Dismissal or adjournment in absence of complainant

If upon the day and at the place appointed by the summons for hearing and determining a complaint of a simple offence of breach of duty the defendant attends voluntarily in obedience to the summons, or is brought before the justices by virtue of a warrant, and the complainant (having had notice of such day and place) does not appear personally or by lawyer, the justices shall dismiss the complaint, unless for some reason they think proper to adjourn the hearing of the same to some other day, in which case they may adjourn the hearing accordingly, upon such terms as they think fit, and may commit the defendant in the meantime or may grant the defendant bail.". [Emphasis added]

It is also common ground that s. 141 vests an Industrial Magistrate with power to make the order which was made. The debate on the Appeal has been about whether the power was appropriately exercised.

Counsel for the Appellant takes as his starting point the Decision of the Full Court of the Supreme Court in James v Williams; ex parte James [1967] QdR 496. That case, I should hasten to add, was not a case involving a failure of a complainant to appear. The complainant did appear, albeit by an Articled Clerk. The Articled Clerk indicated that the complainant wished to continue but sought an adjournment because the complainant's case had not been prepared. At the request of the defendant, the Stipendiary Magistrate dismissed the complaint with costs. There was an appeal. There was uncontradicted evidence (that in 1967) the return date of a summons was treated as in the nature of a call- over date because of congestion in the lists. A majority of the Full Court set aside the Stipendiary Magistrate's order and remitted the matter to the Magistrates Court with a direction to enter any necessary adjournment and proceed with the hearing according to law. At 501 to 502 Hanger J, with whom Mack CJ agreed, observed:

"If a defendant who has been served with a summons to appear on a certain day attends at Court on that day ready to answer the complaint, and the complainant is not then ready to proceed, then, if nothing else appears, the prima facie order to be made would be to adjourn the hearing and to require the complainant to pay the expenses of the defendant - the costs thrown away. If justice can be done by adjourning the case and ordering payment of costs, there is no justification for dismissing the complaint where the bona fides of the complainant is not challenged.".

The passage merits attention in a case about non-appearance because of the way in which the passage was treated by McPherson JA (with whom Holmes J concurred) in Shield v Topliner Pty Ltd [2005] 1 QdR 551. Again, I hasten to add that the case did not concern a failure to appear on the first return date. The case concerned a failure by a complainant to appear at a subsequent mention. In consequence the power to dismiss arose under s. 147 of the Justices Act 1886 2

(not s. 141). The discretion at s. 147 is, of course, expressed in language which is quite different which is used at s. 141. Section 147 provides:

"147 Justices may proceed to hearing in absence of both or either of the parties.

If at the time or place to which a hearing or further hearing is adjourned, either or both of the parties does not or do not appear personally or by a lawyer, the justices then present may proceed to such hearing or further hearing as if such party or parties were present, or if the complainant does not appear justices may dismiss the complaint with or without costs.". [Emphasis added]

It will be necessary shortly to say something about the difference in language. But for the present, it is necessary to note that in Shield v Topliner Pty Ltd [2005] 1 QdR 551 at paragraph [8] McPherson JA said:

"...without referring to those provision in detail, I say now that I consider the present case to be covered by the authority of the Full Court in James v Williams; ex parte James [1967] QdR 496, 501-502.".

The passage then set out at paragraph [8] is the passage from James v Williams; ex parte James ibid, set out above. The reasoning behind His Honour's decision to rely upon the passage partially appears from paragraph [15] whereat His Honour said:

"Nevertheless, it was, as the Magistrate himself later recognised, a denial of natural justice to dismiss the complaints without a hearing when he could have adjourned them with costs at no discernable prejudice to the defendants. The point is...fundamental to the administration of justice...".

In applying James v Williams; ex parte James, op. cit., to the situation covered by s. 147 McPherson JA at paragraph [10] said:

"... There is, however, this difference between that case and this; that there the complainant's solicitors at least appeared by their clerk and asked for an adjournment, whereas here no one at all appeared for Mr Shield. On the other hand, in this instance it was known to everyone concerned that the 12 December 2003 had been designated as a date only for mention of the complaints at which the hearing of the matter would not take place, but rather that some days in the future would then be appointed for a hearing to be held...There was no reason for supposing that the complainant, who was an officer of a State Department was no longer intending to proceed with the complaints, and none at all for supposing that he was intent on abusing the process of the Court. There is no suggestion that the defendants themselves were expecting or ready to proceed to a hearing on 12 December 2003.".

In considering whether the Magistrate's discretion had miscarried His Honour went on to say at paragraph [11]:

"It is, of course, true that, as the Magistrate said, it is not the duty of a Court to communicate with absent litigants to find out why they have not appeared. It is, however, another matter to say that their proceedings should be peremptorily dismissed for failing to do so. Even if there is in such circumstances a power under the Justices Act to dismiss the complaint, the Magistrate ought not, in my opinion, to have exercised it in the circumstances here. He should on this occasion have followed the course called for in James v Williams of adjourning the complaints for another date for mention, and of ordering the complainant to pay the respondent's costs thrown away by the adjournment on 12 December. Predictably, taking that course would have alerted the complainant to the oversight that had taken place and discouraged the department from making the same mistake again.".

It is the contention of Counsel for the Appellant that that approach is entirely apposite here.

Understandably, Counsel for the Respondent places great weight upon the differences in language between s. 141 and s. 147 of the Justices Act 1886. The discretion at s. 147 appears to be at large. The discretion at s. 141 is expressed in quite unusual language. Statutory provisions requiring that a court "shall" do something "unless" satisfied that another course should be adopted are not common. Accepting that "shall" does not mean "may", compare s. 32CA of the Acts Interpretation Act 1954, I am not disposed to give undue weight to the use of "shall". In my view the provision is analogous to a provision which says what is to happen in a given situation unless a court is satisfied that another course should be adopted, compare O15 of the Federal Court Rules. The discretion at O15 has been described as a "very wide discretion", Murex Diagnostics Australia Pty Ltd v Chiron Corporation (1994) 55 FCR 194 at 199-200 per Burchett J. I recognise that s. 141 limits the Court's power to order an adjournment to the case in which it is thought "proper to adjourn", but have some difficulty in accepting that a court exercising jurisdiction pursuant to s. 147 would grant an adjournment where it was not thought proper to do so. I recognise that application of the approach taken in James v Williams; ex parte James [1967] QdR 496 and in Shield v Topliner Pty Ltd [2005] 1 QdR 551, will lead to the situation in which a failure to appear before an Industrial Magistrate by a complainant who is a Public Officer on the first return date will lead to adjournment rather than dismissal of the complaint notwithstanding the expression "shall dismiss" at s. 141, but to say that is to say no more than that what is proper on one occasion will be proper on another. 3

There is no explicit suggestion at first instance that the complainant was no longer intending to proceed, and none at all were supposing that it was his intent on abusing the process of the Court. I do note, that both the transcript and the bench sheet show that some complaint was made that the complainant had failed to meet a request for particulars and had failed to provide a brief of evidence. For the reasons advanced by McPherson in Shield v Topliner Pty Ltd [2005] 1 QdR 551 at [13], the Industrial Magistrate could not have acted upon that material without "...acting on potentially contentious submissions from one party without hearing from the other or affording him an opportunity to be heard on those matters.". There is no indication that His Honour fell into that error. The dismissal of the complaint seems to have been squarely based upon the failure to appear. And for reasons given I consider His Honour's decision to be incorrect.

I allow the Appeal. I order that the decision of Mr Morgan, Industrial Magistrate made on 22 August 2006 be set aside. I order that the complaint be remitted to the Industrial Magistrate Court at Innisfail in order that it might be heard and determined according to law.

In those circumstances, I doubt that any issue as to costs may arise but, out of prudence, I reserve the question of costs.

Dated 7 March 2007.

D. R. HALL, President. Appearances: Mr S. Sapsford directly instructed by Workplace Health and Safety, Legal Released: 7 March 2007 and Prosecution Services for the Appellant. Mr J. Henry SC instructed by Mr V. Martin of Vince Martin & Co, Solicitors for the Respondent.

Government Printer, Queensland The State of Queensland 2007.