Coxon v Oceantech Pty Ltd [2002] ICQ 58 (2003) 172 QGIG 5

3 January, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 5 ######################################################################################################################### ## INDUSTRIAL COURT OF QUEENSLAND Industrial Relations Act 1999 – s. 347 – application for stay of order of industrial magistrate Christopher Brian Coxon AND Oceantech Pty Ltd (No. C97 of 2002) PRESIDENT HALL 13 December 2002 DECISION On 6 December 2002 Christopher Brian Coxon filed an appeal against what was said to be a decision of an Industrial Magistrate that an application for an adjournment of a prosecution under the Workplace Health and Safety Act 1995 scheduled to commence on Thursday Island on 11 December 2002 should not be listed for hearing. The appeal was accompanied by an application for a stay. The stay was disposed of as a matter of urgency on the day on which it was filed, viz 6 December 2002. It was necessary to take that course because if the prosecution was to go ahead on Thursday Island on 11 December 2002 those Brisbane based counsel who were involved would find it necessary to leave Brisbane on Sunday 8 December in order to confer with witnesses and to make travel connections. There were three elements to the appeal. One, it was contended that because of the number of witnesses whom the complainant (Mr Coxon) proposed to call, the prosecution would take five to seven days. Only one day had been allowed by the Industrial Magistrate though there seems to have been some prospect of a further half day on Friday 13 December. The background is in the normal course of events a Magistrate sits at Thursday Island on Wednesday and Friday. Two, it was said that there was to be an inquest into the death which was the subject of the prosecution and that the inquest should be completed before the prosecution commenced. Three, it was said that the complainant required further time to prepare his case. Those matters had not been raised at previous mentions in the Industrial Magistrates Court. Against that background the application of the stay was rejected. In rejecting the stay I said from the Bench: “I have to say that if I had been an Industrial Magistrate in Cairns I would have taken a different view of this matter. However, it was His Worship’s discretion, not discretion of this Court and it was discretion to deal purely with a matter of practice and procedure. There are no reasons. One would have to say the decision was manifestly unjust on the facts before one would go behind the decision. The charges were laid some one and a-half years ago. On the materials before the Industrial Magistrate there had been nine previous mention dates and the previous estimates of length of time of the Hearing had been two to three days. I am not prepared to say, although as I indicated I disagree with the Industrial Magistrate, that this is a decision which is manifestly unjust. In those circumstances it seems to me that I should dismiss the Application for a Stay on the ground that the [Appellant] has no probability of success when the Appeal [proper] is heard. -- 1 of 2 -- 6 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 3 January, 2003 As to the matter of costs. With a view to minimising expense I reserve the question of costs. If [the parties] wish to make submissions on the questions of costs, and, necessarily any application would come from Mr Sheridan, they can contact my Associate and my Associate will set a time frame. It is not appropriate to treat the costs as in some way costs in the cause because there are some peculiar rules about costs in this particular jurisdiction.”. I have taken the unusual course of publishing a decision rather than a report on decision because what was said from the Bench provided no context for the remarks reproduced above and because I wished to make clear that the issue whether a failure to list an application for an adjournment constitutes a “decision” has yet to be argued. Dated 13 December 2002. D.R. HALL, President. Released: 13 December 2002 Appearances: Mr M. Byrne QC and Mr S. Habermann, directly instructed by Division of Workplace Health and Safety, for the appellant. Mr J. Sheridan, instructed by Bottoms English Solicitors, for the respondent. -- 2 of 2 --