Cameron v Sarra and Norris [2010] ICQ 44

CITATION: Jo-Anne Mary Cameron AND Zachary Sarra and Jason Anthony Norris (C/2010/57) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 248(1)(e) - application for prerogative relief Jo-Anne Mary Cameron AND Zachary Sarra and Jason Anthony Norris (C/2010/57) PRESIDENT HALL 18 October 2010 DECISION [1] Mr David Francis Cox is a Public Officer within the meaning of the Justices Act 1886 and an Inspector duly appointed under the Industrial Relations Act 1999. On 27 May 2010, Mr Cox made three separate Complaints about Mr Jason Anthony Norris. The Complaints alleged offences against the Industrial Relations Act 1999. Each Complaint was supported by a Summons. Immediately after making the Complaints, Mr Cox placed the Complaints and accompanying Summonses in an envelope and addressed the envelope to Mr Norris at 25 Prospect Terrace, Wynnum. Mr Cox thereafter registered the envelope and posted it at the Robina Town Centre Post Office. He subsequently swore an Affidavit of Service for each Complaint and Summons. Each of the affidavits specified 25 Prospect Terrace at Wynnum as the address. The affidavits were then forwarded to the Industrial Magistrates Court at Wynnum for filing. The Summonses, I should add, required the appearance of Mr Norris at the Wynnum Industrial Magistrates Court, on 2 July 2010 to answer the Complaints. [2] On or about 18 June 2010, the envelope containing the Complaints was returned to the Department of Justice and Attorney-General. The envelope bore a notation that the envelope was unclaimed. On 2 July 2010, the three Complaints were dealt with by Mr Zachary Sarra, an Industrial Magistrate based at Wynnum. Mr Norris did not appear. The matters were dealt with ex parte under the provisions of s. 142A of the Justices Act 1886. [3] On 6 October 2010, Mr Norris made an Application for "rehearing or reopening" using a standard-form document bearing the Queensland Government emblem. Contrary to the advice given at item (1) on the form, which was to tick one option only, Mr Norris ticked both the option of "rehearing" and the option of "reopening". The pro-forma Application, accompanied by a supporting affidavit, was forwarded to the Industrial Magistrates Court at Wynnum under cover of correspondence dated 6 October 2010. The relevant Industrial Magistrate Court files are before this Court. It appears that the documentation was received on 7 October 2010. The material was not forwarded to Mr Cox. It appears from the files that although the Industrial Magistrate purported to reopen the proceedings finalised on 2 July 2010, the notice forwarded to Mr Cox was in Form 24 "NOTICE OF REHEARING WHEN COMPLAINT HAS BEEN HEARD AND DETERMINED IN THE ABSENCE OF DEFENDANT s. 142(7)(b) & 142A(12A)(b)". The notice advised Mr Cox, who had not had the opportunity to make submissions before the order was made, that there was to be a rehearing on 29 October 2010. Notwithstanding the infelicitous use of the word "reopened", it seems to me to be tolerably clear that the Industrial Magistrate was actually exercising the powers vested in the Industrial Magistrates Court by s. 142A(12) of the Justices Act 1886. The difficulty with such an exercise of power is that s. 142A(12) requires the Application for Rehearing to be made within two months of the date of the ex parte decision. There is no power to extend time: see Guy v McLoughlin and Anor1; Cox v Gordon Cooke and Go Jude Pty Ltd2 ; Power v Callaghan3; and Jason Clifford Gibbons v Michael David McNish4. The Application made on 7 October 2010 was made well outside the time allowed. [4] I am asked to exercise the power at s. 248(1)(e) of the Industrial Relations Act 1999, to quash the orders made by the Industrial Magistrate on 7 October 2010. That seems to me to be the only appropriate course. However, it also appropriate to order that the matters be remitted to the Industrial Magistrate at Wynnum in order that they may be dealt with according to law. As noted, the Complaints and Summonses were sent to 25 Prospect Terrace at Wynnum. The Affidavits of Service also refer to 25 Prospect Terrace at Wynnum. It is now common ground that the correct address was 25 Prospect Street, Wynnum. It is entirely arguable that the convictions should be reopened pursuant to s. 147A of the Justices Act 1886. (The time limit attached to the power to reopen is capable of extension.) 1 Guy v McLoughlin and Anor [2006] QDC 17 2 Cox v Gordon Cooke and Go Jude Pty Ltd [2006] QIC 66 3 Power v Callaghan [2007] QIC 3 4 Jason Clifford Gibbons v Michael David McNish (C/2010/40) - Decision <http:www.qirc.gov.au> -- 1 of 2 -- 2 [5] The Order of the Court is that all proceedings about a rehearing in matter numbers: WYNN-MAG-00001424/10; WYNN-MAG-00001427/10; and WYNN-MAG-00001425/10, be quashed and that each of the matters be returned to the Industrial Magistrate at Wynnum in order that the matters may be heard and determined according to law. Dated 18 October 2010. D.R. HALL, President. Released: 18 October 2010 Appearances: The Applicant in person. Mr N. Jarro instructed by Robert Bax & Associates, for Mr Norris. No appearance for Mr Sarra. -- 2 of 2 --