Coggins & CEC Constructions Pty Ltd [2009] ICQ 15 (2009) 192 QGIG 71

[Extract from Queensland Government Industrial Gazette, dated 2 October, 2009, Vol. 192, No. 5, pages 71-74] INDUSTRIAL COURT OF QUEENSLAND Workplace Health and Safety Act 1995 - s. 164(3) - appeal against decision of industrial magistrate Dean Allan Coggins AND CEC Constructions Pty Ltd (C/2009/21) PRESIDENT HALL 24 September 2009 DECISION On 7 November 2008, Dean Allan Coggins, a Public Officer within the meaning of s. 142A 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. The offence alleged was: "… that on the 23rd day of November 2007 at False Cape, Yarrabah, in the Magistrates Courts District of Cairns, CEC CONSTRUCTIONS PTY LTD being a person on whom a workplace health and safety obligation is imposed did fail to discharge the obligation contrary to section 24 of the said Act in that CEC CONSTRUCTIONS PTY LTD being a relevant person who conducts a business or undertaking did fail to ensure each of the person's workers were not affected by the conduct of its business or undertaking.". Particulars were given: " Particulars Worker: Dudley Anderson EHAU Workplace: Reef Cove Construction Site, Yarrabah, Qld 4871 Business or undertaking: Construction Risk: The risk is the risk of injury, including the risk of death or grievous bodily harm injuries to DUDLEY ANDERSON EHAU Hazard(s): The source of the risk emanates from: (a) The system of work to excavate rock and/or (b) The use of plant, namely, a CAT 330 excavator to excavate rock. Contrary to such Act and Regulation in such case made and provided …". A circumstance of aggravation was alleged, viz., that the breach caused the death of Dudley Anderson Ehau. Prior to the start of the trial, the defendant made an application to the learned Industrial Magistrate hearing the complaint for a direction under s. 83A of the Justices Act 1886 requiring the complainant to provide particulars or, alternatively, disclosure of any Regulation(s), Ministerial Notice(s) or Code(s) of Practice that it intends to contend will have application to the proceedings. On 27 April 2009, the Industrial Magistrate delivered His Honour's Decision and issued the following directions: "I direct that the prosecution disclose to the defendant within 14 days of this date any regulation, ministerial notice or code of practice that it alleges is made relevant by section 26 Workplace Health and Safety Act 1995 and which it intends to rely upon to prove its case against the defendant. I also direct that the prosecution disclose to the defendant within 14 days of this date any regulation, ministerial notice or code of practice that it alleges is made relevant to the circumstances of this case for any reason and which it intends to produce to the Court at the hearing.". The Complainant now appeals against those directions. This Court has consistently held that s. 164(3) of the Workplace Health and Safety Act 1995 is sufficiently broad to encompass "a final decision whether or not of an interlocutory kind", see Jawatts Bakery v Lang (1999) 162 QGIG 408, NQEA Australia Pty Ltd v Dare (2003) 175 QGIG 17 and Sammon v Rutherford (2005) 179 QGIG 142. The orders which are the subject of this Appeal are not of that character. The orders are entirely procedural in nature, go to the conduct of the proceedings before the Industrial Magistrate and may be revisited by the Industrial Magistrate. I accept that it follows from the definition of "person dissatisfied with a decision in proceedings" at Schedule 5 to the Industrial Relations Act 1999, that s. 341(2) of that Act authorises appeals against interlocutory decisions of Industrial Magistrates which lack the element of finality. However, with respect to Counsel for the complainant, s. 164 of the Workplace Health and Safety Act 1995 applies the Industrial Relations Act 1999 to appeals "brought under" s. 164(3) of the Workplace Health and Safety Act 1995 and does not seek to expand the appeals which may be brought under s. 164(3). -- 1 of 3 -- 2 In any event, the application to the Industrial Magistrate was made pursuant to s. 83A of the Justices Act 1886 and the directions were issued pursuant to s. 83A(5). Section 83A(5) expressly bars an interlocutory appeal against such directions. Sammon v Rutherford op. cit. does not contain any suggestion to the contrary. Sammon v Rutherford, op. cit. was a case in which an Industrial Magistrate (correctly) refused to issue directions. Counsel for the complainant submits that this is an appropriate case in which to grant prerogative relief pursuant to s. 248(1)(e) of the Industrial Relations Act 1999. The grant of relief pursuant to s. 248(1)(e) involves the exercise of discretion. In ordinary circumstances, the Court should not grant relief pursuant to s. 248(1)(e) to reverse a decision by the Legislature to bar an appeal. Section 83A(7) of the Justices Act 1886 does not, it must be remembered, bar an appeal in perpetuity. The grant of a direction may be raised in an appeal against conviction or sentence. Only an interlocutory appeal is barred. The difficulty is that the Industrial Magistrates Court is a court of statutory creation. It has only such powers as are conferred on it by express words or necessary implication. Further, by s. 289 of the Industrial Relations Act 1999, the Industrial Magistrates Court is a court of record not a superior court of record. It follows that the Industrial Magistrates Court may not determine its own jurisdiction. Here, the directions orders are said to have been made in excess of jurisdiction. Section 83A of the Justices Act 1886 provides as follows: "83A Direction hearing (1) This section applies to a proceeding for an offence. (2) A magistrate, on his or her own initiative, may direct the parties to the proceeding to attend at a direction hearing. (3) A party to the proceeding may apply to a court, in the approved form, for a direction hearing. (4) The party must serve a copy of the filed application on each other party at least 2 clear days before the day nominated for the direction hearing, unless the court directs otherwise. (5) At a direction hearing, a magistrate may give a direction he or she is entitled to make at law about any aspect of the conduct of the proceeding, including, for example, about any of the following - (aa) disclosing a thing under the Criminal Code, chapter 62, chapter division 3; (a) a party providing a copy of - (i) a medical, psychiatric or other expert report; or (ii) a statement, report or other stated information relevant to the proceeding; (b) psychiatric or other medical examination of the defendant; (c) joining complaints; (d) receiving evidence or submissions by telephone, video link or other form of communication; (e) issuing a summons or warrant; (f) changing the usual practice of the court in a way that helps an alleged victim of the offence to give evidence in the proceeding; (g) if the proceeding is a committal proceeding - (i) the arrangements necessary for the giving of evidence by an affected child witness under the Evidence Act 1977, part 2, division 4A; or (ii) cross-examining a protected witness under the Evidence Act 1977, part 2, division 6. (5A) In a summary proceeding, a magistrate may give a direction under subsection (5)(a) about prosecution disclosure, despite subsection (5)(aa) and section 41. (6) A direction is binding unless a magistrate, for special reason, gives leave to reopen the direction. (7) A direction must not be subject to interlocutory appeal but may raised as a ground of appeal against conviction or sentence. -- 2 of 3 -- 3 (8) To remove any doubt, it is declared that costs are not payable on a direction hearing in relation to an offence dealt with by way of committal proceeding. (9) In this section - direction hearing means a hearing before the court for a direction about the conduct of the proceeding.". The Court was called upon to construe s. 83A in Sammon v Rutherford op. cit. At page 143 the Court said: "I quite accept the submission of Mr Perry SC that s. 83A(5) may be read as if 'including' was preceded by a semi- colon rather than a comma. But the words 'at a direction hearing, a magistrate may give a direction he or she is entitled to make at law about any aspect of the conduct of the proceeding' are not apt to confer power to issue directions. The role of the words is to make plain that the power vested includes power to make any direction the magistrate is otherwise entitled to make as well as the directions in the inclusive list. And at no time has any power other than that at s. 83A5(aa) been identified.". Senior Counsel for the Defendant submits that the Court should abandon that construction and adopt the view that the introductory words do indeed vest power to give a direction, and that the words "entitled to make at law" are intended to limit the power to give a direction in those cases in which the giving of directions is otherwise legislatively precluded. Reliance is placed upon the decision of the Court of Appeal in Higgins v Comans Acting Magistrate and DPP (Qld) [2005] QCA 234. In my view the reliance is misplaced. Higgins v Comans Acting Magistrate and DPP (Qld), ibid, concerned a stated case which raised the question whether the Magistrates Court had the power to grant a stay of proceedings in relation to the examination of witnesses on a committal hearing. The Court of Appeal found that the Justices Act 1886 contained no such express power and in reliance on Grassby v R (1989) 168 CLR 1, held that such a power might not be implied. Counsel for Higgins sought to meet those findings by relying on the introductory words of s. 83A. As to that submission, Keane JA at paragraph [21] observed: "Further, the appellant's reliance on the general terms of s 83A(5) to bring a permanent stay of committal proceedings within the category of directions which the magistrate is 'entitled to make at law about any aspect of the conduct of the proceeding' is essentially circular. The submission begs the question of what directions the magistrate is entitled to give at law in relation to committal proceedings. Reference to s 108 of the Justices Act 1886 effectively circumscribes the magistrate's function 'at law' in this regard as I will explain below.". The comment that the argument was "entirely circular" seems to me to convey that the "general terms" required the Court to embark again on the task which the Court had already undertaken, viz., the search for an express or necessarily implied power. I accept the submission of Senior Counsel for the Defendant that the construction which I have placed upon s. 83A of the Justices Act 1886 does not sit well with the Explanatory Notes to the Bill which introduced s. 83A, viz., Criminal Law Amendment Bill 2002. Explanatory Notes may sometimes be overly enthusiastic. It is not legitimate to fondle the words of a statute to achieve the ambition disclosed by the Explanatory Note. I should say that I regret the conclusion to which I have come. The directions issued by the Industrial Magistrate seem to me to be eminently sensible and moderate. Regulations, Ministerial Notices and Codes of Practice do vary over time. It is entirely useful if parties to proceedings under the Workplace Health and Safety Act 1995 can agree upon the versions relevant to the proceedings. However, that regret is no justification for withholding relief where there has been an excess of jurisdiction. I quash the directions issued by the Industrial Magistrate on 17 April 2009 in the matter of Dean Allan Coggins AND CEC Constructions Pty Ltd, LFR: CAIR-MAG-11754/08, FILE NO: MAG-212593/08(7). Dated 24 September 2009. D.R. HALL, President. Released: 24 September 2009 Appearances: Mr G. Lee of Legal and Prosecution Services, Workplace Health and Safety Queensland, for the Appellant. Mr R. Douglas SC instructed by DLA Phillips Fox as Town Agents for Miller Harris Lawyers, for the Respondent. Government Printer, Queensland The State of Queensland 2009. -- 3 of 3 --