Charges stemming from the horror death of a grandfather at Queensland’s Coppabella mine could be revived after an error in the court process was revealed.
Workplace Health and Safety prosecutors will be able to have the matter relisted after the Industrial Court of Queensland found a magistrate had dismissed the case in error in February, 2022.
Ipswich grandfather Brad Duxbury, 57, was crushed to death on November 25, 2019 while repairing machinery at Carborough Downs underground mine after defective equipment failed to stop falling coal.
Carborough Downs Mine Management, and Jeremy David Futeran and Russell Clive Uhr, who each held the position of site senior executive at the mine in the months leading up to the tragedy, were charged with failing to discharge health and safety obligations causing death.
Brad Duxbury was killed at Carborough Downs mine site on November 25, 2019.
But the WHS prosecutor who had signed off on the charges had listed the matters in the magistrates court, which had no jurisdiction to hear them, rather than the industrial magistrates court and as a result, Acting Magistrate Athol Kennedy struck out all complaints.
No case will proceed against Mr Futeran, who had left the role two months before the tragedy, after it was determined continued prosecution would be oppressive.
In a recent judgment, ICQ President Justice Peter Davis found there was “no reason” why Mr Kennedy “could not have exercised his jurisdiction as an industrial magistrate”.
Further, Justice Davis found because the industrial Magistrate‘s jurisdiction “ousts that of the magistrates court” Mr Kennedy, who had been acting as a magistrate, should not have dismissed the case.
Carborough Downs Mine
“Being an order made beyond jurisdiction, it is invalid and is, in law, not an order at all,” Justice Davis said.
Lawyers for Carborough Downs and Mr Uhr tried to argue amending the charge to the correct jurisdiction was not open because “summonsing a party to the wrong court is such a fundamental defect that it cannot be amended”.
Justice Davis rejected this and found it could be.
He also found that because Mr Kennedy “refused to exercise the jurisdiction of the Industrial Magistrates Court which he undoubtedly had” it justified an order that the Industrial Magistrates Court hear and determine the complaints.