Clarke v Lobley; Lobley v Clarke [2008] ICQ 3 (2008) 187 QGIG

[Extract from Queensland Government Industrial Gazette, Dated 8 February 2008, Vol. 187, No. 4, pages 73-76] INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - ss. 341(2), 346 and 347 - appeal against decision of industrial magistrate - application for extension of time to appeal - application to stay orders of industrial magistrate Raymond Patrick Clarke AND Wayne John Lobley (C/2007/66) Raymond Patrick Clarke AND Wayne John Lobley (C/2007/67) Wayne John Lobley AND Raymond Patrick Clarke (C/2008/5) Wayne John Lobley AND Raymond Patrick Clarke (C/2008/6) PRESIDENT HALL 31 January 2008 DECISION On 20 April 2007, Wayne John Lobley a Public Officer within the meaning of the Justices Act 1886 and an Inspector duly appointed under the provisions of the Industrial Relations Act 1999, made a complaint before a Justice of the Peace that on 22 June 2006 at Clontarf, in the Magistrates Court district of Redcliffe in the State of Queensland, Raymond Patrick Clarke carrying on business under the registered business name of Ray Clarke Roofing, being an employer within the meaning of the Industrial Relations Act 1999, committed an offence under the said Act in that he failed to keep a time and wages record as required by s. 366 of the Act. On the same day Mr Lobley made a further complaint before the Justice of the Peace that on 20 February 2006 at Clontarf, Raymond Patrick Clarke carrying on business under the registered business name of Ray Clarke Roofing being an employer within the meaning of the Industrial Relations Act 1999, committed an offence under the said Act in that he failed to pay wages "for a rate agreed between the employer and the employee, namely David Bruce Thurgood employed by him as a roof plumber, the rate for such work being fixed by an industrial instrument namely the Building Construction Industry Award - State 2003 such rate being less than the agreed rate.". (Complaint subsequently amended by deletion of underlined words.) The Complaint about the failure to pay wages, I should add, was accompanied by particulars which made clear that "wages" was being used in the full statutory sense and included pro rata annual leave and severance pay. The particulars made clear also that the Complaint was not in respect of wages first earned and first due on 20 February 2006. The Complaint was about wages earned over a period of time and a failure to pay all outstanding wages on the day on which Mr Thurgood's employment came to an end. Each of the Complaints was heard by the Acting Industrial Magistrate at Redcliffe on 9 August 2007. Mr Clarke, who pleaded not guilty to each of the Complaints, appeared for himself. As a matter of convenience the matters were heard together. On 23 October 2007, the Acting Industrial Magistrate published reasons dealing with both matters. The Acting Industrial Magistrate convicted Mr Clarke on each of the complaints. On neither Complaint was a conviction recorded. On the Complaint about the failure to keep time and wages records, Mr Clarke was fined $500 and ordered to pay $65.40 by way of costs of court. In default of payment, there was to be levy in distress and in default of levy in distress Mr Clarke was to be imprisoned for 10 days. On the Complaint about the failure to pay wages Mr Clarke was fined the sum of $2,500 and ordered to pay $65.40 by way of costs of court. In default there was to be levy in distress and in default of levy in distress Mr Clarke was to be imprisoned for a period of 50 days. There was also an order pursuant s. 666(6)(a) of the Industrial Relations Act 1999, requiring Mr Clarke to pay $21,342.71 by way of outstanding wages. In default there was to be levy in distress and in default of levy in distress Mr Clarke was to be imprisoned for 100 days. By s. 341(2) Mr Clarke had a right of appeal to this Court against the decision of the Acting Industrial Magistrate upon each of the Complaints and against all orders made by the Acting Industrial Magistrate. However, by s. 346 Mr Clarke was required to bring any appeal within 21 days. He did not do so. He did not consult with a solicitor until 13 November 2007, i.e. the day on which time expired. The first response of the solicitor consulted by Mr Clarke was to seek a re-opening of each of the matters pursuant to s. 147(A)(2) of the Justices Act 1886. Each of the applications for a re-opening was rejected. There is no appeal against either rejection: neither, one suspects, could there be. The Acting Industrial Magistrate may have erred but he was not mistaken as to the facts. Following upon the failure of the attempt to re-open the two matters, Mr Clarke's solicitor lodged an appeal against the Acting Industrial Magistrate's decision on each of the Complaints. Mr Clarke's solicitor also sought a stay of the Acting Industrial Magistrate's orders. The orders relating to the fines had been registered under the State Penalties Enforcement Act 1999. The State Penalties Enforcement Registry had given Mr Clarke a payment date of 26 November 2007, and had brought home to Mr Clarke the remedies which might be pursued if the fines were not paid by that date. Given the urgency of the matter and the time of the year (the Appeal and the Stay did not reach the Industrial Registrar until 12 December 2007), the staff of this Court took the necessary steps to ensure that Mr Clarke's solicitor was aware of the need to seek an extension of time and to ensure that the Respondent (the complainant below) was aware of all -- 1 of 3 -- 2 proceedings which had been instituted. Against that background, the matter was mentioned in the Court on 17 December 2007. In the course of the mention, Mr Clarke's solicitor, who for reasons of expedition and costs was heard on the telephone, accepted that there was great difficulty in mounting a case for a stay before time had been enlarged. Only after time has been enlarged will Mr Clarke have an appeal. In those circumstances the necessary arrangements were made to deal with the Application for Extension of Time and to deal with the Stay on 23 January 2008. When the matters were called on 23 January 2008, it emerged that some difficulties about practice and procedure had developed. Because he was aware that the Respondent held copies of the Application to Appeal, the Application for an Extension of Time and the Application for a Stay, Mr Clarke's solicitor did not serve any of those documents upon the Respondent. He was remiss in that. Rule 111 of the Industrial Relations (Tribunals) Rules 2000 (the Rules), required service of those documents. However, notwithstanding the use of the verb "must" at Rule 111(2), there is a statutory power to waive compliance with the Rules (s. 329(k)). In the case of an understandable error which caused no disadvantage it seems to me to be entirely appropriate to waive the non-compliance and I do. There was further infelicity in failing to comply with the Directions Order which issued after the hearing on 17 December 2007, setting forth the steps to be taken in preparation for the hearing on 23 January 2008. Non-compliance with a Directions Order is, of course, a basis for a dismissal of proceedings, see Rule 42 of the Rules. However, to the extent that non- compliance involved failure to serve the Application to Appeal, the Application for an Extension of Time, and the Application for a Stay, for the same reasons as developed in dealing with Rule 111, it seems to me that the non- compliance should be waived. For the same reasons, I waive non-compliance with the failure to serve the Directions Order itself. The Respondent was perfectly well aware of the directions. The Respondent's representatives and Mr Clarke's solicitor had been participants in a discussion directed to settling mutually acceptable directions. (There is indeed a school of thought that in such circumstances a formal Directions Order should not issue and the directions should simply be formally read in open court.) The further failure to provide the Respondent's representatives with an Outline of Submissions within the time limited by the Directions Order is another matter. The general purpose of such directions is to ensure that a party goes to a hearing knowing the arguments which the party must meet. That consideration is of particular importance where, as here, time was of the essence. Further, with the benefit of hindsight (which is a great benefit indeed) this was exactly the sort of case in which an outline of the "Appellant's" submissions was essential. The original Application to Appeal was settled before the Appellant had access to the Acting Industrial Magistrate's reasons for decision. The transcript version of the reasons for decision was ultimately supplied to Mr Clarke's solicitor by this Court. (In fairness to the Acting Industrial Magistrate, I interpolate that the typed reasons for decision which had been read onto the transcript had been placed upon the relevant file and were always accessible.) It is understandable that Mr Clarke's solicitor and the member of the Bar retained by him would wish to depart from the original grounds of appeal after having had access to the reasons for decision. It is also entirely understandable that practitioners who had not appeared at the hearing would be reluctant to formalise an outline of submission prior to having access to the transcript. This is not a case in which those acting for Mr Clarke were indifferent to the impending delay. Mr Clarke's solicitor wrote to the Industrial Registrar seeking an enlargement of time. Regrettably, the letter arrived during the Christmas closedown and, whilst there were arrangements in place to deal with urgent matters, Mr Clarke's solicitor was unaware of those arrangements. In fact, the Respondent's legal advisors did ultimately receive the Outline of Submissions and the affidavit materials to be relied upon. In fact, the Respondent's advisors have been able to respond to the Outline of Submissions and to generate affidavit material in response. It is not necessary to delay the proceedings. Whilst I accept that the delay in non-compliance has been burdensome to the Respondent's representatives, on an appeal in criminal matters in which (on default) Mr Clarke faces the prospect of imprisonment for a little over 5 months, it seems to me that burden and inconvenience are not sufficient reasons to deprive Mr Clarke of his various applications. On 22 January 2008, i.e. the day before the proposed hearing of Mr Clarke's Application for an Extension of Time, the Respondent filed an appeal about the orders made by the Acting Industrial Magistrate upon each of the complaints and filed an Application for Extension of Time to allow the hearing of the Appeals. The Application for Extension of Time was listed for hearing at the same time as Mr Clarke's Application for Extension of Time. As a matter of formality the Appeals were also listed. Counsel for Mr Clarke does not complain of the short notice and, indeed, does not oppose grant of the extension of time. I now turn to the merits of each Application for Extension of Time. Mr Clarke's Appeal was filed 20 days out of time. In the context of a limitation period of 21 days, a delay of 20 days is not inconsiderable. However, the period of time is not such as in itself to require rejection of the Application for an Extension of Time. There is a further consideration that in the context of an appeal by way of rehearing on the record in the Warren v Coombes (1979) 142 CLR 531 sense, it is difficult to appreciate how the mere lapse of time can prejudice the Respondent's case on appeal. (I understand that revival of an appeal after the 21 day limitation period has elapsed will be seen by the Respondent as prejudice.) The issues which Mr Clarke seeks to raise are arguable and are not without merit. First, Mr Clarke seeks to contend that the evidence upon which the Acting Industrial Magistrate made a finding about the classification within the Building Construction Industry Award - State 2003, within which Mr Thurgood fell, was -- 2 of 3 -- 3 either inadmissible or alternatively insufficient to justify a finding beyond reasonable doubt. Whilst for present purposes I am prepared to accept the submission for the Respondent that the onus of proof applicable where a finding has been made for the purposes of s. 666(6)(a) is the civil onus, I am not persuaded that the finding about the relevant classification was irrelevant to the issue of breach at s. 666(1). Mr Thurgood was paid. As a matter of first impression one cannot make a finding that Mr Thurgood was paid less than the appropriate amount under the Award until one knows the amount which he should have been paid. Second, Mr Clarke seeks to take also the point that evidence was admitted as if the offence alleged was an offence described at s. 666(2)(b), whereas in truth the offence alleged was an offence of the type at s. 6662)(a). I have some reservation about the submissions. Given the detail of the particulars and the evidence which was led, there seems to me to be a prima facie argument that the Justices Act 1886 authorised and required the Acting Industrial Magistrate to cure any such deficiency as is now alleged by bringing the Complaint into accord with the particulars and into accord with the evidence. However, the point is a novel one. The relationship between s. 666(2)(a) and s. 666(2)(b) is not the subject of authority. The submission cannot be dismissed out of hand. Third, Mr Clarke takes the point that he sought time to pay. The Acting Industrial Magistrate treated the request as a "waste of time". As a matter of law, the Acting Industrial Magistrate did have power to grant time to pay, compare Penalties and Sentences Act 1992, s. 51(a). His Honour was also required to consider Mr Clarke's financial circumstances and the nature of the burden that payment of the fine might impose upon him, compare Penalties and Sentences Act 1992, s. 48(1), and was required to explain to Mr Clarke that he might apply for a fine option order, Penalties and Sentences Act 1992, s. 53. On a first reading of the transcript, those obligations appear not to have been discharged. Whilst I continue to accept that the time limit at s. 346(1) of the Industrial Relations Act 1999, is to be seen as an assessment by the Legislature that, in the ordinary category of case, justice will best be served by adhering to a 21 day limitation period and that an applicant for an extension of time must demonstrate why the 21 day time limit should be departed from, it seems to me that in this case Mr Clarke has discharged the burden cast upon him. I suspect that the Application to Appeal was filed in the Industrial Magistrates Court at Redcliffe on 10 December 2007. However, as a matter of prudence, I extend time to 12 December 2007 which, as I understand it, was the day on which the documentation actually reached the office of the Industrial Registrar. It follows from grant of the extension of time that the Application for a Stay - which was deferred because this decision was reserved - must be listed for hearing. My Associate will make the necessary arrangements. It also follows from the reasoning above that Counsel for Mr Clarke needs to amend the grounds of appeal at the earliest opportunity. The essential point raised by the Respondent's Application to Appeal is that in failing to nominate a time for payment of the outstanding wages, the Acting Industrial Magistrate has issued an order which cannot be enforced under the State Penalties Enforcement Act 1999. The omission to nominate a time for payment of the fines is also said to be an irregularity. The issues are not unrelated to the issues about sentence raised by Mr Clarke. Counsel for Mr Clarke does not oppose grant of the extension of time. Should Mr Clarke's Appeal prove unsuccessful and the orders remain in their present form, the process of determining a way forward will be burdensome both to Mr Clarke and to the Respondent. The appropriate course is to grant the extension of time until 23 January 2008 and I do. As a matter of first impression Mr Clarke's Application for an Extension of Time to pursue an appeal against his conviction for a breach of s. 366 and the orders made therein is not a strong one. However, the order made by the Acting Industrial Magistrate contemplates that (at least in some circumstances) Mr Clarke might be imprisoned should the fine not be met. I accept that such an order is within power. However, it is an arguable view that the purpose of the Penalties and Sentences Act 1992, was to introduce the scheme for enforcement which would minimise the exposure of fine defaulters to the risk of imprisonment and minimise the costs of imprisonment borne by the community. The issue may well arise in any event on Mr Clarke's Appeal about the breach of s. 666. If one takes the view that the imprisonment of fine defaulters is ordinarily inappropriate, it becomes difficult to justify the use of the present prison system as if it were Newgate Gaol to secure the payment of outstanding debts. On balance, I extend time until 12 December 2007. Dated 31 January 2008. D. R. HALL, President. Released: 31 January 2008 Appearances: Mr R.I. Cameron instructed by Mr B. Gleeson of Gleeson Klein Solicitors, for Mr R.P. Clarke. Ms J. Cameron and with her Ms V. McKenzie of Legal and Prosecution Services, Department of Employment and Industrial Relations, for Mr W.J. Lobley. Government Printer, Queensland The State of Queensland 2008. -- 3 of 3 --