Buglar v Woodham [2007] ICQ 4 (2007) 184 QGIG 90

[Extract from Queensland Government Industrial Gazette, dated 23 February, 2007, Vol. 184, No. 8, pages 90-93] INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 341(2) - appeal against decision of industrial magistrate Mark Lindsay Buglar AND Richard Arthur Woodham (C/2006/58) PRESIDENT HALL 12 February 2007 DECISION By a complaint made 24 March 2006, the Appellant alleged that the Respondent committed an offence against the Industrial Relations Act 1999 (the Act) in that a corporation viz. Raw Commodities Pty Ltd, failed to pay wages payable under an industrial agreement and that at the time of the offence the Respondent was an executive officer of that corporation for the purposes of s. 673 of the Act. The offence was said to have occurred on 12 August 2004. On 25 July 2006, the complaint was struck out by the Industrial Magistrate, Brisbane. The complaint was struck on the grounds of: "(a) want of jurisdiction (on the basis on non-compliance with s. 683(7) of the Act); and (b) abuse of process.". An appeal against the Industrial Magistrate's decision was filed on 15 August 2006. As a matter of history I note that the Appellant does not canvass whether a finding of abuse of process should have led to the complaint being permanently stayed rather than dismissed. The Appellant also accepts that an Industrial Magistrate has power to stay/strike out a complaint for abuse of process. Section 683(7) of the Act provides: "(7) Proceedings for an offence against section 138, 406 and 666 must be commenced within 6 months after the offence comes to the complainant's knowledge, but within 6 years after the offence was committed.". (Emphasis added) The Industrial Magistrate held (a) that the complaint was not made within 6 months after the Appellant was burdened by constructive knowledge of the commission of the offence, and held (b) that constructive knowledge was "knowledge" for the purposes of s. 683(7) of the Act. The proposition that constructive knowledge is "knowledge" for the purposes of s. 683(7) is inconsistent with the decision of this Court in Roslyn Joy Thiele v Harry John Davis (2000) 165 QGIG 23 and Counsel for the Respondent concedes the inconsistency. The Court is not asked to reconsider the decision in Roslyn Joy Thiele v Harry John Davis, ibid. Given the decision of the Court of Appeal in Cross Country Realty Pty Ltd and Ors v Peebles [2006] QCA 501 on the entirely comparable provision at s. 589(1)(b) of the Property Agents and Motor Dealers' Act 2000, reconsideration would presently* be difficult to justify. Insofar as the Industrial Magistrate's decision to strike out the complaint was based on s. 683(7), the decision cannot be sustained. In fairness to the Industrial Magistrate, I should add that His Honour's decision preceded the decision of the Court of Appeal. [*Counsel informed the Court that leave to appeal against the Court of Appeal is to be sought.] Neither is it possible to sustain the Industrial Magistrate's reasons for finding that there had been an abuse of process. His Honour seems to have accepted that the Inspector with carriage of the investigation (Mr Kent), having realised that more than six months had elapsed since he had become aware of the commission of the offence, had sought to salvage the matter by passing the file to an inspector with no (or negligible) knowledge of the matter. On the evidence, those findings were not open. The Appellant correctly summarises the (only) evidence as follows: "Mr Buglar swore to the effect that he had not been given the file to evade the effect of Mr Kent being unable to take action... He also swore that when he received the file Mr Kent had transferred out of the office. The file was give to Mr Buglar in the regular way, because he was performing the prosecutions work... ". Indeed, whilst Counsel for the Respondent seeks to defend the finding that the proceeding was an abuse of process, the submission advances quite a different basis for the finding. The Appellant summarises the evidence about practices within the Department of Employment and Industrial Relations in following receipt of a complaint by an employee that he has not been paid his wages and in deciding whether or not to institute criminal proceedings as follows: "A complaint is lodged with the Department and subsequently issued to an inspector for investigation... In this case the complaint was lodged in mid 2004 ... and was subsequently issued to Mr Kent. The Appellant was not the investigating inspector. -- 1 of 4 -- 2 The Policy is that once a complaint is issued to an Investigating Inspector the matter is investigated, they obtain all relevant facts, information and documentation. This information is put together and an assessment may be done to compare what an award or an agreed rate would say compared to what the employee has actually been paid. Once it is established that there is an amount outstanding the inspector would attempt to recover that amount from the employer. If recovery is unsuccessful the inspector would take a statement of facts from the employee and submit a full report to the principal industrial inspector advising that there is sufficient information to proceed. The principal inspector would then review the file himself and may require the referring inspector to obtain further information. Once satisfied with the evidence on file the matter would then be referred to a regional manager who will have the sole discretion in deciding whether or not to commence proceedings... Evidence was give to the Court in the first instance that the complaint was investigated by Mr Kent, who completed his investigation, including the preparation of a draft Complaint, and submitted that to the Regional Manager... The file was referred to the principal inspector by Mr Kent on 19 December 2005 and then to the Regional Manager on 1 March 2006. Prior to handing a file over to a principal inspector the investigating inspector will draft a complaint and save this to the computer. This is for ease and simplicity for the prosecuting inspector. When the matter is ready for filing it is just a case of changing the relevant dates etc... Mr Kent had done this, preparing a draft complaint that listed a return date of 2 March 2006. There was no evidence as to when Mr Kent drafted the complaint. Mr Kent had earlier written to the employer on 16 September 2005 and attempted to recover the amount outstanding. He received no response. The Regional Manager is not the complainant. He merely provides authorisation as to whether proceedings should be commenced upon the evidence presented... Mr Kent left the Lutwyche office of the inspectorate in February 2006 to work in another area of the Department of Industrial Relations... The matter was considered by the Regional Manager and was referred to a prosecuting inspector to lay a complaint if, in his opinion, there was sufficient evidence... The file is reviewed on its merits by the inspector to whom it is allocated to see if there is sufficient evidence or whether further information needs to be sought... Evidence was given that Mr Buglar was the prosecuting inspector who promptly filed and served. He received the file after 15 March 2006 and several days prior to 24 march 2006... He had no knowledge of the file prior to this (apart from an incidental encounter at the front counter of the inspector's office on 17 November 2004). The elements that were looked at in March 2006 by Mr Bugler when deciding whether to make a complaint were the nature of the complaint, the allegations, the following report and assessment that would have been prepared by the investigating inspector and any documentation attached such as time and wages records, payslips etc, recommendations of the Regional Manager or principal inspector... Mr Buglar made the complaint on 24 March 2006.". Counsel for the Respondent broadly accepts the summary but contends for certain qualifications. One, that after the employee lodged his complaint in August 2004, the investigation was taken up by a Kym Tollenaere, who requested the provision of certain time and wages records. That request was met in or about early March 2005. Subsequently, in or about May 2005 the file was handed to Mr Kent. I agree that the evidence supports the qualification. Two, Mr Kent, who had written to the Respondent on 16 September 2005 seeking payment of the amount of wages said to be outstanding and who had prepared a draft complaint on an unknown day in 2005, should be found to have had knowledge of the commission of the offence some time between receipt of the file in or about May 2005 and 16 September 2005. On the slender evidence available, that inference seems to me not to be open. All that occurred is consistent with Mr Kent being conscious that prosecution was a possible outcome without having worked his way through the materials and having formed a concluded view that an offence had been committed. The letter of 16 September 2005 was not a letter of demand and recognised that the Respondent might have a different story to tell. The letter concluded: "If the facts are not as stated by the employee, or you require assistance with the calculations, please contact me on... Your cooperation in providing a response within 14 days of the dates of this letter would be appreciated.". -- 2 of 4 -- 3 In my view the only safe inference is that Mr Kent was aware of the commission of offence on or about 19 December when Mr Kent published his recommendation to prosecute. I turn then to the Respondent's submission about abuse of process. The case made about abuse of process has superficial attraction. Under the policy adopted by the Department the file always moves forward. It moves from the Investigator to the Principal inspector. From the Principal Inspector it moves to the Regional Manager. From the Regional Manager it moves to a Prosecuting Inspector. Provided the Prosecuting Inspector is quarantined behind artificial barriers and acts expeditiously, the "six month requirement" of s. 683(7) will not have work to do. The "requirement" will be dormant though the file only arrives at the door of the Prosecuting Inspector after each of the Investigating Inspector, the Principal Inspector and the Regional Manager has formed a view that offence has been committed and whether or not any or all of those officers has sat on his hands in excess of the six months after forming that view. In fairness to the gentleman through whose hands the file passed in the present matter, it is proper that I record that the evidence does not establish dilatory conduct after formation of the requisite opinion by any one of them. But, I should also note that in attacking the policy, Counsel for the Respondent emphasises the difficulty faced by the recipient of a complaint and summons in penetrating the administrative history of the matter by application under the Freedom of Information Act 1992 and by even skilled cross-examination. Counsel also makes the point that the final stage of the process, i.e. the review by a Prosecuting Inspector hither to insulated from the file, is a review by a junior officer of a superior officer's decision, compare the criticism of performance by a junior employee who is a Justice of the Peace of discretionary functions of that office in matters initiated by a superior in Electronic Rentals Pty Ltd v Anderson (1970-1971) 124 CLR 27 at 45 to 46 per Windeyer J. With respect to the skill with which Counsel has presented a difficult argument, the criticisms are criticisms of a policy pursued by an arm of the Executive Branch of Government in investigating complaints about under-payment of wages and in determining whether a prosecution should be launched. It is an aspect of the separation of powers that neither the Industrial Magistrates Court nor this Court should not become concerned about such matters, compare Jago v District Court of New South Wales (1989) 168 CLR 23 at 39 per Brennan J, unless the consequence of the administrative process will be unfairness to the parties and and/or the community in the course of the judicial process triggered by the making of the complaint, see Jago v District Court of New South Wales, ibid, at 28 to 29 per Mason CJ, Walton v Gardiner (1992-1993) 177 CLR 378 at 392 to 393 per Mason CJ, Deane and Dawson JJ and Batistatos (by his Tutor Rosebottom)v Roads and Traffic Authority (NSW)(2006) 80 ALJR 1100 at [14] per Gleeson CJ, Gummow, Hayne and Crennan JJ. Grant of a permanent stay on the basis of delay alone is an extreme step, compare Jago v District Court of New South Wales, op. cit, at 34 per Brennan J, to be taken after a weighing of all the factors, Walton v Gardiner, op. cit, at 396 per Mason CJ, Deane and Dawson JJ. Here the complaint was made approximately 19 months after the date of the alleged offence and well within the outer temporal limit of 6 years set by s. 683(7). In Ayres v WorkCover Queensland (1998) 158 QGIG 528 at 528, where the time limit was the last to expire of one year after commission of the offence or 6 months after knowledge of commission of the offence, Williams P, was not disposed to find an abuse of process where proceedings were completed within 2 years of the commission of the offence. Had it not been for the proceedings in the Industrial Magistrate Court, which are the subject of the Appeal, the prosecution here should have been completed well within 6 years and perhaps in a little over 2 years. There is no evidence that the Respondent was led to believe that there would be no prosecution, compare Ayres v WorkCover Queensland, ibid, at 528 per Williams P. There is no evidence that the Respondent pressed for expedition or otherwise asserted his rights, compare Jago v District Court of New South Wales, op. cit, at 32 to 33 Per Mason CJ. Importantly, while the Respondent is legitimately entitled to complain that the delay has been prejudicial to himself and to the public interest in the timely disposition of prosecutions, Counsel has been unable to particularise the prejudice to this Respondent. On all of the authorities, a permanent stay should not be granted where the prejudice may be overborne or as ameliorated by less extreme remedial orders. In my view the immunity from prosecution granted to the Respondent on the basis of abuse of process cannot be defended. Counsel for the Respondent seeks to defend dismissal of the complaint on the basis that the correct limitation period was the shorter limitation period at s. 683(7). The core of the submission is that the offence alleged was a breach of s. 673 not a breach of s. 666. I do not accept the submission. Section 673 does not create an offence. Section 673 merely deems an Executive Officer to be a party to the corporations offence under s. 666. In dealing with a not dissimilar deeming provision in Hookham v The Queen (1994) 181 CLR 450 at 459 Deane, Dawson and Gaudron JJ observed: "The 'deeming' provisions... do not create a situation in which one person is to be regarded as having committed another person's offence. Rather, they require persons with the specified complicity in an offence at be regarded as parties to that offence. ... The offences of which the appellant was convicted ... were the same as those committed by the corporation...". -- 3 of 4 -- 4 At 456 Brennan J said: "Once s. 8Y(1) deems an offender to have committed an offence, its work is done...section 8Y(1) is relevant... in that it identifies the corporation's offence as the offence for which the offender is liable to be convicted.". I allow the appeal. I order that the matter be remitted to the Industrial Magistrates Court to be heard and determined according to law. Dated 12 February 2007. D. R. HALL, President. Released: 12 February 2007 Appearances: Mr C.J. Murdoch, instructed by Crown Law for the Appellant. Mr A.K. Herbert, instructed by The Employment Advisor, for the Respondent. Government Printer, Queensland The State of Queensland 2007. -- 4 of 4 --