Cameron v Kelly [2011] ICQ 12

CITATION: Jo-Anne Mary Cameron AND Scott Luxton and Anthony Stephen Kelly (C/2011/18) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 248(1)(e)(i) - application for prerogative orders Jo-Anne Mary Cameron AND Scott Luxton and Anthony Stephen Kelly (C/2011/18) PRESIDENT HALL 9 May 2011 DECISION [1] On 17 May 2010, Daniel Joseph Killoran, a Public Officer within the meaning of the Justices Act 1886 and an Inspector duly appointed under the Industrial Relations Act 1999 (the Act), commenced proceedings under s. 399 of the Act against Anthony Stephen Kelly. It was alleged that Mr Kelly was an employer within the meaning of the Act and that he had underpaid one of his employees certain wages due to her under an industrial instrument, viz., the Café, Restaurant and Catering Award - State (Excluding South-East Queensland) 2003. The amount alleged to be outstanding was $2,120.75. [2] The hearing was set for 21 June 2010. Mr Kelly did not appear. In reliance on s. 142A of the Justices Act 1886 the Acting Industrial Magistrate ordered Mr Kelly to pay $2,120.75 in respect of wages and $73.80 in respect of costs. In default of payment of wages, Mr Kelly was ordered to be imprisoned for 21 days. In default of payment of the costs of Court, Mr Kelly was ordered to be imprisoned for 1 day. Mr Kelly was allowed two months to pay each of the two amounts. [3] Mr Killoran was subsequently advised that he was required to appear in the Industrial Magistrates Court in Townsville on 1 July 2010. Mr Killoran did appear on 1 July 2010. Mr Kelly did not appear. The Acting Industrial Magistrate purported to amend the orders made on 21 June 2010. Each of the default orders was deleted. The Acting Industrial Magistrate had no power to make the amendments. The orders were within power. There was no misapprehension of fact. An Industrial Magistrate may not alter an order on the basis of change of mind; compare Garaty v Dawson's Tree Services Logan Pty Ltd1. [4] I quash the orders made by the Industrial Magistrate on 1 July 2010. I shall make a formal order reinstating the orders of 21 June 2010, save that time to pay will now run from the making of the formal orders by this Court. Dated 9 May 2011. D.R. HALL, President. Released: 9 May 2011. Appearances: Ms J. Cameron of Legal and Prosecution Services, Department of Justice and Attorney-General, the Applicant. No appearance for the First and Second Respondents. 1 Neale Raymond Garaty v Dawson's Tree Services Logan Pty Ltd (2003)173 QGIG 974 -- 1 of 1 --