Cox v Caton [2009] ICQ 26 (2009) 191 QGIG 214

[Extract from Queensland Government Industrial Gazette, dated 26 June, 2009, Vol. 191, No. 7, page 214] INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 341(2) - appeal against decision of industrial magistrate David Francis Cox AND John Anthony Caton (C/2009/16) PRESIDENT HALL 17 June 2009 DECISION Section 406(1) of the Industrial Relations Act 1999 (the Act) imposes a statutory duty upon employers to pay superannuation contributions due under an industrial instrument. Section 666 of the Act imposes a statutory obligation to pay wages due under an industrial instrument. Neither subsection uses the noun "offence". However, each of ss. 406(2) and 666(2) describe breach of the obligation as an offence. Additionally, each of ss. 406(1) and 666(1) fixes a maximum penalty. In consequence, s. 41 of the Acts Interpretation Act 1954 operates to make breach of the duty an offence. On 23 February 2009, Mr Caton was charged on one complaint and summons with two offences under s. 666 of the Act for failing to pay wages under an industrial instrument to a Mr Stevens. On the same day he was further charged on a separate complaint and summons with an offence under s. 406 of the Act for failing to make contributions to an approved superannuation fund at a level required by the industrial instrument. Additionally, once again on 23 February 2009, Mr Caton was charged on one complaint and summons with two offences under s. 666 for failing to pay wages under an industrial instrument to a Ms Collier and a further charge under s. 406 for failing to make contributions to an approved superannuation fund at a level required by the industrial instrument. In relation to each (of the four) complaints, the notation "Justices Act 1886", appeared in the top left hand corner. In the same corner the section of the (expressly named) Industrial Relations Act 1999 creating the relevant offence was nominated. Each complaint and summons was properly served. Each of the complaints was listed for hearing before the Industrial Magistrate at Richlands on 6 April 2009. There was no appearance by Mr Caton. Mr Caton was ordered to pay all of the amounts specified in the complaints, in default levy on distress, in default imprisonment. No time for payment was specified in the orders. The Industrial Magistrate declined to convict and fine Mr Caton on any of the four complaints because the complaints did not allege that Mr Caton had committed an offence. No authority was cited by the Industrial Magistrate. The research of Counsel has failed to locate any supporting authority. There is authority to the contrary; viz., R v. Holloway Prison (Governor) (1916) L.J.K.B. 689 AT 690 PER Lord Reading CJ. Additionally, s. 47 of the Justices Act 1886 requires an offence to be described in the words of the Act creating the offence or in similar words. Here, that had been done. Further, the forms used were those approved by the Director-General of the Department of Justice in 1996 and notified in the Queensland Government Gazette (No 115, 16 August 1996). I accept the Appellant's submission that the proceedings at first instance have miscarried. However, I doubt that the appropriate remedy is to set aside the decision of the Industrial Magistrate upon the allegations of breach and to substitute another decision. To begin with, although I understand what has happened, I doubt that the Industrial Magistrate actually made orders about the alleged offences. Second, even in the case of s. 666 of the Act, if the proceedings were incompetent, it may be doubted that power at s. 666(6)(b) to deal with the underpayment was triggered. Third, if the fine is imposed by this Court there may be an issue about whether a warrant may issue in the event of default. In all of the circumstances, I exercise the power at s. 248(1)(e) of the Act to quash the proceedings in all matters initiated by the complaints in the Industrial Magistrate's Court and to quash the orders made therein by the Industrial Magistrate. I further order that each of the matters be remitted to the Industrial Magistrate's Court at Richlands to be heard and determined according to law. Dated 17 June 2009. D.R. HALL, President. Released: 17 June 2009 Appearances: Ms J. Cameron of Legal and Prosecution Services, for the Appellant. No appearance for the Respondent. Government Printer, Queensland The State of Queensland 2009. -- 1 of 1 --