Callahan v Power [2007] ICQ 16 (2007) 184 QGIG 204

[Extract from Queensland Government Industrial Gazette, dated 5 April, 2007, Vol. 184, No. 14, pages 204-205] INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 341(2) - appeal against decision of industrial magistrate Jacqueline Anne Callahan AND John Hugh Power (C/2007/17) PRESIDENT HALL 26 March 2007 DECISION The Appellant, Jacqueline Anne Callahan, was an Executive Officer and a Director of Kabuki Trading Pty Ltd. On 12 May 2006, the Appellant was charged with each of two separate offences under s. 673 of the Industrial Relations Act 1999. One complaint related to a failure to pay wages under an industrial instrument to a Ms Cosgrove. The other complaint related to a failure to pay wages under the same industrial instrument to a Ms Staples. Each of the complaints was served upon the Appellant. The Appellant did not appear at the return date at the Industrial Magistrates Court at Cleveland. She was convicted in her absence on each complaint, ordered to pay wages in the amount of $756.46 to Ms Cosgrove and in the amount of $1,789.97 to Ms Staples, ordered to pay costs of court in the amount of $65.30 on each complaint and fined $3,000.00 on each complaint. On or about 9 November 2006, the Appellant sought a reopening of the proceedings on each of the complaints in the Industrial Magistrate Court at Cleveland. An Industrial Magistrate sitting at Cleveland granted the applications. By a decision of 20 February 2007, now reported at 184 QGIG 110, this Court set aside the "re-opening orders" and reinstated the orders originally made. In those circumstances, Ms Callahan appeals to this Court. I doubt that the "Application to Appeal" conforms with the Industrial Relations (Tribunals) Rules 2000. Prima facie, the orders made on each of the two complaints should have been subject to two separate appeals. The inclusion of an application for extension of time within the "Application to Appeal" is unusual. But all of that may be waived. The issue whether the extension of time should be allowed is another and a more difficult matter. By enacting s. 346 of the Industrial Relations Act 1999, the Legislature has recognised that in the ordinary category of case, the interests of justice will best be served if appeals lodged beyond the 21 day limitation of time are not heard. However, the Court has been vested with a discretion to extend time. Here, on balance, it seems to me that Ms Callahan has made out a positive case for grant of extension of time. It is certainly true that the application for an appeal was filed very late. The decision now appealed against, was delivered on 16 June 2006. The Appeal was not filed until 10 March 2007. But, after 9 November 2006 and prior to the decision of this Court on 20 February 2007, Ms Callahan had no need to appeal. The course which she had earlier adopted of seeking a "re-opening" of proceedings on each of the two complaints was a course which was, at one time, recommended by some sections of the profession; and Ms Callahan was self- represented. The Respondent does not oppose extension of time. I order that the time for filing the Appeal be extended to 11 March 2007. The Appeal is only about the quantum of the fines imposed in respect of each of the two breaches of the Industrial Relations Act 1999. The Appellant has declined an invitation to seek legal advice about how best to present her case on quantum and about whether the Industrial Magistrate should have adjourned the complaints for further mention. It must be stressed that sentencing involves the exercise of discretion. The discretion is vested in the Industrial Magistrate. This Court will go behind a penalty set by an Industrial Magistrate only where the case may be brought within the principles in House v King (1936) 55 CLR 499 at 504 to 505 per Dixon, Evatt and McTiernan JJ. Here there is neither a transcript nor affidavit material about what transpired. There is the Bench Sheet and the orders. To succeed the Appellant must show that the quantum of the fines was so excessive that there must have been an error of law or of principle. In truth, the fines are very modest. The offences were serious. Each imposed was but 20% of the available maximum fine. Taking account of the claims on the Appeal, the only apparent mitigating circumstance is that Ms Callahan is a first offender. There was neither a prompt plea of guilty nor cooperation with the authorities. That is not a matter of aggravation. But, it does mean that a mitigating factor, often present, was not present here. There is no remorse. The tears are for the fact of prosecution; not for the employees left without wages. Save as to one matter I am not prepared to depart from the decision of the Industrial Magistrate. Because the Appellant did not appear, the Industrial Magistrate was not called upon to consider the Appellant's straightened circumstances, the Respondent consents to a generous period of time to pay. Grant of an extended period within which to pay will minimise the risk that the fines will operate upon impecuniosity to produce injustice. In my view, whilst the decision of the Industrial Magistrate to impose of $3,000.00 in respect of each breach was not plainly unjust, it should be varied to allow for a period of time to pay. -- 1 of 2 -- 2 I order that each of the Orders made by the Industrial Magistrate at Cleveland on 16 June 2006, be varied by adding thereto "Ms Callahan has 12 months to pay, in default levy and distress will apply". I otherwise confirm all Orders made by the Industrial Magistrate. As a matter of prudence, Ms Callahan is granted liberty to apply to this Court for an enlargement of the period of time within which payment is to be made, should such enlargement be necessary. Dated 26 March 2007. D. R. HALL, President. Released: 26 March 2007 Appearances: The Appellant in person. Ms J. Cameron of the Department of Employment and Industrial Relations, Legal and Prosecution Services, for the Respondent. Government Printer, Queensland The State of Queensland 2007. -- 2 of 2 --