BM Alliance Coal Operations Pty Ltd & anor v Lyne [2007] ICQ 39 (2007) 185 QGIG 417

[Extract from Queensland Government Industrial Gazette, dated 31 August, 2007, Vol. 185, No. 18, pages 417-421] INDUSTRIAL COURT OF QUEENSLAND Coal Mining Safety and Health Act 1999 - s. 255(3) - appeal against decision of industrial magistrate Industrial Relations Act 1999 - s. 248(1)(e) - application for prerogative relief BM Alliance Coal Operations Pty Ltd and Byron Hamilton Zietsman AND Brian Lyne (C/2007/31) BM Alliance Coal Operations Pty Ltd and Byron Hamilton Zietsman AND James Gordon and Brian Lyne (C/2007/43) PRESIDENT HALL 24 August 2007 DECISION By s. 290 of the Industrial Relations Act 1999 each of (a) a Magistrate; and (b) an Acting Magistrate, is an Industrial Magistrate. By s. 291 an Industrial Magistrate sitting alone constitutes an Industrial Magistrates Court. By s. 289 an Industrial Magistrates Court is a court of record. By s. 292(1)(a) an Industrial Magistrate has jurisdiction to exercise powers conferred on Industrial Magistrates or jurisdiction given to Industrial Magistrates, by the Industrial Relations Act 1999 or another Act [emphasis added]. Such "another Act" is the Coal Mining Safety and Health Act 1999. Unlike the Workers' Compensation and Rehabilitation Act 2003, which (by s. 548A) gives appellants against certain of Q-COMP's decisions the choice of an appeal to an Industrial Magistrate or the Queensland Industrial Relations Commission, the Coal Mining Safety and Health Act 1999, gives no indication that any judicial officer other than an Industrial Magistrate is invested with power or jurisdiction. The consequence is that the jurisdiction of the Industrial Magistrate is exclusive of the jurisdiction of any other court, see Industrial Relations Act 1999, s. 293(1). The Coal Mining Safety and Health Act 1999, which repealed and replaced the Coal Mining Act 1925 and Coal Mining Amendment Act 1989, has the objects of: "(a) protecting the safety and health of persons at coal mines and persons who may be affected by coal mining operations and (b) requiring that the risk of injury or illness to any person resulting from coal mining operations be at an acceptable level. ". [See s. 6] By s. 7(a) and (c) those objects are to be achieved, inter alia, by imposing safety and health obligations on persons who operate coal mines or who may affect the safety or health of others at coal mines, and by making regulations to require and promote risk management and control. The obligations imposed upon holders of, inter alia, mining leases for a coal mine under the Mineral Resources Act 1989, and of coal mine operators and senior executives are described at Part 3, Division 3 of the Coal Mining Safety and Health Act 1999. (It is the effect of s. 37(1) and (2) that a regulation may limit the ways in which the obligations at Part 3, Division 3 may be discharged.) By s. 34 of the Coal Mining Safety and Health Act 1999, persons natural or artificial who fail to discharge an obligation, are liable to penalty. Prosecution for such an offence is by way of summary proceedings before an Industrial Magistrate. By ss. 4 and 36 of the Acts Interpretation Act 1954, "industrial magistrate" when used in an Act has its meaning under the Industrial Relations Act 1999 and by ss. 4, 36 and 44 "summary proceeding" is "a summary proceeding under the Justices Act 1886", unless (in either case) the Act indicates a contrary intention. It follows that a prosecution for an offence against s. 255 of the Coal Mining Safety and Health Act 1999, will be heard by an Industrial Magistrate sitting alone and constituting an Industrial Magistrates Court and that the proceedings are to be summary proceedings under the Justices Act 1886. The latter proposition seems to be confirmed by s. 255(4) which provides: "The Workplace Relations Act 1997 applies, with necessary changes, to a proceeding before an industrial magistrate brought under subsection (1) and to a proceeding on appeal before the Industrial Court brought under subsection (3).". The reference to the Workplace Relations Act 1997, is now to be read as a reference to the Industrial Relations Act 1999, see s. 722 and Acts Interpretation Act 1954, s. 14H. By s. 677 of the Industrial Relations Act 1999, the provisions about the powers and procedures before an Industrial Magistrates Court, i.e. an Industrial Magistrate sitting alone, apply in relation to the jurisdiction of an Industrial Magistrate under the Act and also apply in relation to the jurisdiction of an Industrial Magistrates Court under another Act, e.g. the Coal Mining Safety and Health Act 1999. The presently relevant provision of the Industrial Relations Act 1999 is s. 683(2) which provides: "Proceedings before a magistrate are to be heard and decided summarily under the Justices Act 1886, but the Industrial Magistrates Court where the proceedings are taken is to be constituted by a magistrate sitting alone.". -- 1 of 5 -- 2 On 27 July 2005, Mr Brian Lyne, the Chief Inspector appointed under the Coal Mining Safety and Health Act 1999 made a complaint before a Justice of the Peace at Brisbane. Entirely formal parts omitted, the complaint was in the following terms: "Coal Mining Safety and Health Act 1999 Sections 34(a), 37(a), 38(3), 41(1)(a), 255 Coal Mining Safety and Health Regulation 2001 Sections 5(3), 72(c) QUEENSLAND Justices Act 1886 (Form 4) COMPLAINT - GENERAL PURPOSES - MADE, AND SUMMONS THE COMPLAINT OF BRIAN LYNE of Brisbane in the State of Queensland, a Public Officer within the meaning of Section 142A of the Justices Act 1886 and the Chief Inspector appointed under the Coal Mining Safety and Health Act 1999 made this 27th day of July 2005 before the undersigned, a Justice of the Peace for the said Sate, who says that on or about the 28 July 2004 at Goonyella Riverside Mine via Moranbah in the Magistrates Court District of Claremont in the State of Queensland BM ALLIANCE COAL OPERATIONS PTY LTD ABN 67096412752 a person on whom a safety and health obligation was imposed did fail to discharge the obligation contrary to the Coal Mining Safety and Health Act 1999 Particulars 1. BM Alliance Coal Operations Pty Ltd ABN 67096412752 was the operator of the Goonyella Riverside Mine via Moranbah in Queensland on or about 28 July 2004. 2. On or about the said date there was a serious accident involving material falling from the underside of a Terex RH170 excavator during operations at the Goonyella Riverside Mine. 3. The said accident caused injuries to George Fowler and Mark Charmaine who were struck by the material falling from the said excavator. 4. The said George Fowler and Mark Charmaine were coal mine workers at the Goonyella Riverside Mine engaged in maintaining the said Terex RH170 excavator when such injuries occurred. 5. The injuries suffered by George Fowler and Mark Charmaine as aforesaid amounted to grievous bodily harm within the meaning of that expression as used in section 34(a) of the Coal Mining Safety and Health Act 1999. 6. BM Alliance Coal Operations Pty Ltd ABN 67096412752 in breach of section 41(1) of the Coal Mining Safety and Health Act 1999 did fail to ensure that maintenance of mobile plant namely the Terex RH170 excavator at the said mine by removal of materials adhering to the underside of the said excavator was carried out in a manner and/or pursuant to a management and operating system and/or a safety and health management system so that the level of risk to George Fowler and Mark Charmaine as aforesaid was at an acceptable level. 7. Further, or in the alternative BM Alliance Coal Operations Pty Ltd ABN 67096412752 failed to ensure that it had in place standard operating procedures for maintaining mobile plant namely the Terex RH170 excavator in its operational location at the said mine. 8. By failing to ensure that the said excavator was maintained in a manner and/or pursuant to an appropriately constituted management and operating system and/or pursuant to an appropriately constituted safety and health management system the said BM Alliance Coal Operations Pty Ltd ABN 67096412752 failed to discharge its safety and health obligation so as to ensure that the risk to workers such as George Fowler and Mark Charmaine while at the operator's Goonyella Riverside Mine was at an acceptable level. 9. Further, or in the alternative BM Alliance Coal Operations Pty Ltd ABN 67096412752 did not follow the way prescribed by section 7s(c) of the Coal Mining Safety and Health Regulation 2001 to achieve an acceptable level of risk at the said coal mine contrary to section 37(1) of the Coal Mining Safety and Health Act and/or 5(3) of the said Regulation. Contrary to the Acts and regulations in such case made and provided: WHEREUPON the said BRIAN LYNE prays that I, the said Justice, will proceed in the premises according to law.". -- 2 of 5 -- 3 A similar complaint was made about Mr Byron Hamilton Zeitsman. The significant difference is that Mr Zeitsman was attacked as the "site senior executive", not as the "operator" of the mine. That very day, viz. 27 July 2005, the Justice of the Peace before whom the complaints had been sworn issued a summons to each of BM Alliance Coal Operations Pty Ltd and to Mr Zeitsman. Once again it is sufficient to reproduce the summons to BM Alliance Coal Operations Pty Ltd. Entirely, formal parts omitted, the summons was in the following terms: "SUMMONS To: BM ALLIANCE COAL OPERATIONS PTY LTD ABN 67096412752 Of: Level 13 Riverside Centre 123 Eagle Street BRISBANE QLD 4000 Whereas a Complaint, a copy of which is attached hereto, has this day been made before me: You are hereby commanded in Her Majesty's name to appear at the Magistrates court situated at: Place: 21 Griffin Street, MORANBAH Date: 3 November 2005 Time: 9:00 am before a Magistrates court to answer the said Complaint and then be further dealt with according to law. Given under my hand at: Place: Brisbane Date: 27/7/2005 [Signature] Justice of the Peace.". At first instance, the case developed by each of the Defendants was that the summons was defective. In short form it was contended that each defendant had been required to appear before the Magistrates Court, a court which had no jurisdiction because the jurisdiction of the Industrial Magistrates Court was exclusive. It was argued that the Industrial Magistrate might not exercise jurisdiction because neither Defendant had been required to appear at the Industrial Magistrates Court. That case was pressed again on the Appeal and Application for Prerogative Relief. However, the Appellants/Applicants also developed a case that each of the complaints was fatally flawed, because it had been made to and received by a Justice of the Peace instead of being made to and received by an Industrial Magistrate. For convenience in exposition, I shall deal firstly with the second submission. The submission that the complaint should have been made to, and received by an Industrial Magistrate rather than a Justice of the Peace, rests upon the proposition that a complaint should be received by, and any necessary summons issued by, a judicial officer with authority to hear the complaint. It is accepted that the old system pursuant to which two Justices would take a complaint and issue a summons requiring appearance before the Justices consisting a Court of Petty Sessions, has been much modified. It is accepted that a single Justice may now receive a complaint and issue a summons (Justices Act 1886, ss. 24 and 53), that two Justices sitting to hear a complaint constitute a Magistrates Court and do not institute a Court of Petty Sessions (Justices Act 1886, s. 27), that a Magistrates Court may also be constituted by a Magistrate sitting alone (Justices Act 1886, s. 30(1)), and that where available a Magistrate sitting alone is to constitute a Magistrates Court in preference to Justices (Justices Act 1886, s. 30(3)). However, it is contended that, even in its greatly modified form, the Justices Act 1886 preserves the principle that a complaint is made to and is received by a judicial officer at least potentially capable of hearing the complaint. It is then submitted that the reference to "summary proceedings" in s. 255(1) of the Coal Mining Safety and Health Act 1999 and the "complaint" at s. 255(5) cannot be read so as to adapt the scheme about the making and receipt of complaints under the Justices Act 1886 in a literal way and that it is implicit that the function of receiving a complaint is to be discharged only by judicial officers potentially capable of constituting an Industrial Magistrates Court, viz. Magistrates and Industrial Magistrates. I accept that historians may regard a legislative scheme authorising a judicial officer to receive a complaint and issue a summons where the complaint initiates proceedings which the officer might not (in any circumstances) hear. However, I can understand why the Legislature would choose to adapt the existing procedural regime under the Justices Act 1886 rather than re-invent the wheel when developing a procedural regime for the Industrial Magistrates Court. Additionally, there is another historical trail. Originally the Queensland industrial system was based upon commencement of matters in the Court and remitter to Industrial Magistrates, *see Industrial Arbitration Act 1916, s. 77 and Industrial Conciliation and Arbitration Act 1932, s. 63. There was no issue about commencement of proceedings in the Industrial Magistrates Court. The issue was about the instituting of proceedings in the forerunners to this Court. The Rules of Court under each of the Industrial Arbitration Act 1916, see Rules 5, 7 and 8, and the Industrial Conciliation and Arbitration Act 1932, Rules 3, 5 and 7, provided that proceedings for the enforcement of penalties were to be commenced by complaint before a Justice of the Peace and that the Justice was to issue the summons. The Justice of the Peace was plainly unable to hear a complaint under either Act. [It was not until 1952 that all Stipendiary Magistrates were Industrial Magistrates, see The Industrial Conciliation and Arbitration Acts Amendment Act of 1952.] -- 3 of 5 -- 4 In my view each of s. 255 of the Coal Mining Safety and Health Act 1999 and ss. 677 and 693(2) of the Industrial Relations Act 1999, follow a well worn, if inelegant path and authorise the making of a complaint to a Justice of the Peace and the receipt of the complaint by that justice. It follows that the complaint was properly made. The summons directed to BM Alliance Coal Operations Pty Ltd (which is materially the same as the summons to Mr Zietsman) has already been reproduced. However, further or reproduction of the critical words is helpful to understanding of the difficulties. The key words are: "Whereas a Complaint, a copy of which is attached hereto, has this day been made before me. You are hereby commanded in Her Majesty's name to appear at the Magistrates Court situated at: Place: 21 Griffin Street, MORANBAH Date: 3 November 2005 Time: 9:00 am before a Magistrates Court to answer the said Complaint and then be further dealt with according to the law.". [Emphasis added] Had it not been for the words "before a Magistrates Court" the summons was entirely unexceptional. Absent those words the summons required the defendant to appear at a particular building, viz. the Magistrates Court situated at 21 Griffin Street, Moranbah (a place whereat Magistrates commonly sit) on a specified day at a specified time. Such a summons is not defective, compare the decision of the Full Court in Shinnie and Shinnie v Bain, ex parte Bain [1955] QWN 30. It is the words "before a Magistrates Court" which let in the argument that the Defendant was required to appear at the incorrect court. That concession made, I do not accept the submission that the summons was "quite unequivocal" in requiring the Defendant to appear in the Magistrates Court. The summons was served with a copy of the complaint (previously reproduced) which raised an offence capable of being heard only by an Industrial Magistrate and which, in the top left hand corner, specified the sections of the Coal Mining Safety and Health Act 1999, including s. 255, which brought about that result. The summons was at worst confusing (though the Appellants/Applicants were not confused). The summons was certainly less misleading than the summons considered in Donohoe v Chew Ying (1913) 16 CLR 364. In circumstances in which the offence against Commonwealth Law might be heard only by a Stipendiary Magistrate, a Police Magistrate or a Special Magistrate, the summons which had been issued did not require appearance before any one of those judicial officers but required the defendant to appear "before such justice or justices of the peace for the said State as may then be there.". In rejecting an attack upon the summons Griffith CJ, with whom Barton, Isaacs and Gavan Duffy JJ concurred, said (at 368): "But in my opinion, a summons drawn in the form given in the Schedule is sufficient in all cases. It is suggested that it does not appear on the face of the summons that the justices before whom the respondent is called upon to appear will have jurisdiction to hear the information. But that is a difficulty which may arise in any case. In may of the Australian States justices have jurisdiction all over the State. In some of them, just as in England, justices have only a limited territorial jurisdiction. But the summons in all is in the same form. In my opinion, it means that the defendant is called upon to appear before such justices qualified to exercise jurisdiction as may then be there.". As in Donohoe v Chew Ying (1913) 16 CLR 364, the summons here was in the form prescribed or approved for its purpose, see Justices Act 1886, s. 265. It required the attendance of the Defendants at a place whereat Magistrates and/or Acting Magistrates qualified to exercise jurisdiction might be expected to be at the nominated time. In my view, the summons was not defective. It may be conceded that the Acting Magistrate who dealt with the early proceedings seems not to have appreciated that the matters should have been before His Honour sitting as an Industrial Magistrate and constituting an Industrial Magistrates Court. However, the adjournments of 3 November 2005, 8 December 2005, 6 March 2006, 18 May 2006 and 10 August 2006 were by consent and without appearance by the parties. There were appearances on 30 November 2006 but after the solicitor for the Defendants indicated an intention to make an application for a change of venue to Brisbane, and after Crown Law had indicated an intention to oppose the application, a transfer to Brisbane for the limited purposes of dealing with that application was granted by consent. No matter of substance was debated. The issue of the capacity in which the Acting Industrial Magistrate was dealing with the matters did not arise. That issue did arise on the hearing in Brisbane of the application for a change of venue on 24 and 25 January 2007 and again on the formal challenge to each summons on 5 April 2007. Had it not been for the decision of a Brisbane-based Magistrate (Mr Gordon) to sit and to hear the matters as an Industrial Magistrate sitting as the Industrial Magistrates Court there would not now be an appeal to this Court against Mr Gordon's decision of 27 April 2007 rejecting the challenge to each summons, nor would there be an application for prerogative *relief against Mr Gordon "exercising jurisdiction as an industrial magistrate in the Industrial Magistrates Court". Each summons has achieved its purpose. [*The Appeal has been supplemented by an application for prerogative relief under s. 248 of the Industrial Relations Act 1999 out of -- 4 of 5 -- 5 apprehension that s. 255(5) will not support an appeal against an interlocutory decision which does not formally dispose of the matter, compare WorkCover Queensland v Susan Adams (2003) 173 QGIG 759.] It is contended for My Lyne that even if each summons was defective, the Appellants/Applicants had lost the point for failure to take objection in a timely way. Accepting that appearance is not decisive and that each defendant should have appeared under protest to take prompt objection (compare Smith v B. James; ex parte Smith (OSC No 8 of 1985- 28 August 1985) in a case in which the point does not matter I can see no utility in teasing apart the transcript of 24 and 25 January 2007 to determine whether fault lay with the Appellants/Applicants or the "Court" (to use a neutral term). The Appeal is dismissed. The Application is dismissed. I reserve all questions about costs. Dated 24 August 2007. D. R. HALL, President. Released: 24 August 2007 Appearances: Mr H.B. Fraser QC and with him Mr A.J. Horneman-Wren instructed by Blake Dawson Waldron, Solicitors for the Appellants and Applicants. Mr D.B. Fraser QC and with him Mr P.W. Telford, instructed by the Crown Solicitor for the Respondent. Government Printer, Queensland The State of Queensland 2007. -- 5 of 5 --