Chandler v Quality Bakers Australia Limited (No. 2) [2004] ICQ 17 (2004) 175 QGIG 1123

2 April, 2004 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1123 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Workplace Health and Safety Act 1995 – s. 164(3) – appeal against decision of industrial magistrate Mark Luke Chandler AND Quality Bakers Australia Limited (No. 2) (No. C82 of 2003) PRESIDENT HALL 18 March 2004 DECISION On 28 January 2004 this Court dismissed an appeal against the quantum of the fine imposed by an Industrial Magistrate on a prosecution under the Workplace Health and Safety Act 1995. The decision is now reported at 175 QGIG 572. All questions about costs were reserved. The respondent now seeks costs pursuant to s. 335 of the Industrial Relations Act 1999. The substantial basis of the application is that the appeal against sentence had no objective prospect of success. I am unable to accept that submission. The task from first to last was to fix a fine within a statutory range of $0 to $187,500. Taking a broad brush view, it was possible to narrow the range by referring to the precedents. But the narrowing gave rise to considerable difference of opinion. It must be remembered that before the Industrial Magistrate the now respondent contended that the appropriate range was $18,000 to $22,000 and the now appellant contented that the appropriate range was $25,000 to $30,000. The difference of opinion reflects on no one. It is a consequence of deriving a range from cases which are few in number and different in their circumstances. I doubt that the brief reasons of the Industrial Magistrate would have caused the appellant to change his view. Importantly, this was not a case in which the appellant was seeking to tinker with a penalty imposed by the Industrial Magistrate by repositioning a sentence within a range: compare generally the discussion by Kirby J in Dinsdale v. The Queen (1991) 202 CLR 321 at paragraphs 62 and 65. The fine of $15,000 imposed by the Industrial Magistrate was below the base of the range contended for by the respondent. Whilst the appellant was unable to identify any error, I can understand why competent counsel would seek to argue that the sentence was so low as to be too low and to demonstrate in itself that an identifiable error had occurred. I dismiss the application for costs. Dated 18 March 2004. D.R. HALL, President. Released: 18 March 2004 Appearances: Mr P. Matthews, instructed by Division of Workplace Health and Safety for the appellant. Mr R. King of Blake Dawson Waldren Lawyers for the respondent. -- 1 of 1 --