Cox v Cooke & Anor [2006] ICQ 60 (2006) 183 QGIG 868

[Extract from Queensland Government Industrial Gazette, dated 24 November, 2006, Vol. 183, No. 17, pages 868-870] INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 - s. 341(1) - appeal against decision of industrial magistrate David Francis Cox AND Gordon Cooke and Go Jude Pty Ltd (C/2006/65) PRESIDENT HALL 14 November 2006 DECISION The Respondent, Gordon Cooke is alleged to be an Executive Officer of Go Jude Pty Ltd. He is said to be also a Director of Go Jude Pty Ltd. Mr Cooke's name, address and other details are recorded on ASIC records which are publicly accessible. On 16 March 2006, Mr Cooke was charged on complaint and summons with three separate offences under s. 666 of the Industrial Relations Act 1999 (the Act) for failing to pay wages under an industrial agreement to Kanakporn Carey (Carey), Lorraine Margaret Sydes (Sydes) and Corey John Shepard (Shepard). Go Jude Pty Ltd was the Respondent to a civil application under s. 399 of the Act in relation to wages payable to Lynette Marie Bishop (Bishop). All matters were listed for first mention in the Richlands Industrial Magistrates Court on 10 April 2006. The Court documents were served by the Appellant on 16 March 2006. Specifically, the Appellant forwarded the Court documents by mail to the registered office of Go Jude Pty Ltd which was also listed as the address of Mr Cooke. Subsequent to such service, the Appellant deposed an affidavit of service in respect of each complaint and summons in respect of the application. The affidavits of service were filed with the Industrial Magistrates Court. On the first return date neither Mr Cooke nor Go Jude Pty Ltd appeared. The Industrial Magistrate proceeded to hear the matters in the absence of Mr Cooke and Go Jude Pty Ltd. There is no transcript. The bench complaint sheet was endorsed as follows: "I impose one penalty in respect of offences numbered 1753; 1750; 1756 of 2006 under the provisions of section 49/97/107 of Penalties and Sentences Act 1992. No appearance of Defendant. Service Proved. Hearing Ex Parte. I am satisfied that the provisions of s. 142A have been complied with and that the facts as alleged in the Complaint constitute an offence as referred to in s. 142A and reasonably sufficient particulars are set out in the Complaint (or annexed therein). I hear the Complainant. Defendant is convicted and total fine $7,500 and ordered to pay costs of Court $65.30. In default of payment within 28 days to be imprisoned for 151 days. Conviction is not recorded.". For completeness I add that Mr Cooke was ordered to pay wages in the amount of $11,567.37 (Carey), $8,220.10 (Sydes) and $3,994.11 (Shepard). Go Jude Pty Ltd was ordered to pay wages in the amount of $13,473.45 to Bishop (a costs order was also made against Go Jude Pty Ltd). Section 683 of the Act adopts the regime established by the Justices Act 1886 where proceedings for an offence are heard by an Industrial Magistrate. Section 142A establishes the statutory scheme which covers the case where a defendant does not appear; Shield v Topliner Pty Ltd [2005] QdR 551 at 558 [para 23] per Jerrard J.A. It is clear that the Industrial Magistrate applied s. 142A. The Industrial Magistrate refers expressly to s. 142A. The findings recorded relate to the issues raised by s. 142A(4). Section 142A was the correct section to apply. A defendant convicted in absentia pursuant to s. 142A may apply for a rehearing - s. 142A(12). The Industrial Magistrates Court may grant a rehearing "for such reason as it thinks proper" - s. 142A(12). But the application for a rehearing must be made within 28 days of the adverse determination. There is no power to enlarge time, compare Guy v McLoughlin and Anor [2006] QDC 017. Mr Cooke did not make application within 28 days of the adverse determination. He lost his remedy under s. 142A(12). Belatedly, Mr Cooke did seek a rehearing. Mr Cooke was successful. The orders were vacated on 9 October 2006 and a rehearing ordered. The Industrial Magistrate relied upon s. 147(A). His Honour erred. The conviction of Mr Cooke was not based on an error of fact. In particular, it was not based on an erroneous finding that Mr Cooke was aware of the time and the place of the hearing. The Bench Sheet records "service proved". That was the correct inquiry. There can be no suggestion that the conclusion was incorrect. Actual service is not a requirement of any of the orders of service as s. 56 of the Justices Act 1886; compare Cheung v Webster [1986] 2 QdR 374 at 377 lines 25 to 30, Abu- Dabat v Gibbons (2004) 176 QGIG 542. -- 1 of 2 -- 2 There are unresolved issues about whether a defendant convicted in absentia under s. 142A may ever invoke s. 147A. It is unnecessary to resolve the conundrum here. Given the limited argument presented to the Court it is preferable not to do so. I allow the appeal. I set aside the orders made by the Industrial Magistrate on 9 October 2006 in respect of offences numbers 1753, 1750 and 1756 of 2006 and reinstate the orders of April 2006. Dated 14 November 2006. D. R. HALL, President. Released: 14 November 2006 Appearances: Ms J. Cameron of Legal and Prosecution Services, Workplace Health and Safety Queensland for the Appellant. Mr W.J. Tolton, instructed by Mugford Lawyers for the Respondent. Government Printer, Queensland The State of Queensland 2006. -- 2 of 2 --