Jurisdiction in work health and safety prosecutions can be complex. This is because prosecutions can be brought under various pieces of legislation which trigger different jurisdictions. The jurisdiction which is triggered determines not only the court in which a prosecution is to be commenced, but also the broader system. The system in which a prosecution proceeds then determines various other things, including where an appeal lies and the nature of the relief a party may seek.
In this two-part series, we consider the importance of being clear about jurisdiction in light of the recent decision of the Industrial Court of Queensland (ICQ), Nicholson v Carborough Downs Coal Management Pty Ltd & Ors (No 4) [2023] ICQ 5. This is the latest in a string of related cases (Carborough Downs Coal matters),[1] which revolve around an oversight by the Work Health and Safety Prosecutor (WHSP), who summoned defendants to the Magistrates Court instead of the Industrial Magistrates Court. The Carborough Downs Coal matters highlight the critical importance of properly considering jurisdictional matters.
Industrial relations system in Queensland
The industrial relations system in Queensland is facilitated by, among other things, an independent court and tribunal.
Chapter 11 of the Industrial Relations Act 2016 (IR Act) establishes the ICQ, the Queensland Industrial Relations Commission (QIRC) and the Industrial Magistrates Court. The ICQ has supervisory powers over the QIRC and the Industrial Magistrates Court. This is not only through appeal avenues, but also through the exercise of prerogative powers.
The Magistrates Court exists beyond the scheme of courts and tribunals as established by the IR Act. It is established under its own legislation with different avenues of appeal from its decisions. The Magistrates Court is subject to the supervisory jurisdiction of the Supreme Court and appeals to the District Court.
The work health and safety prosecution scheme in Queensland engages both the specialist industrial system and the general criminal jurisdiction.
Work health and safety laws in Queensland
The Office of the WHSP is an independent prosecution office which conducts and defends proceedings for breaches of work health and safety and resources safety and health laws in Queensland.
These laws include:
- Work Health and Safety Act 2011
- Electrical Safety Act 2002
- Safety in Recreational Water Activities Act 2011
- Explosives Act 1999
- Petroleum and Gas (Production and Safety) Act 2004
- Coal Mining Safety and Health Act 1999
- Mining and Quarrying Safety and Health Act 1999.
Where a prosecution lies depends on the provision by which the relevant offence is prosecuted. For example, summary offences and committals under the Work Health and Safety Act 2011 are commenced and heard in the Magistrates Court. Whereas, all offences under the Coal Mining Safety and Health Act 1999 (CMSH Act), other than industrial manslaughter, are heard in the Industrial Magistrates Court.
It is incredibly important to be aware of this because it determines what court and system you are in. Getting off on the wrong foot in the beginning can cause an unforeseeable host of issues and litigation beyond the principal prosecution. The Carborough Downs Coal matters provide an example of when things go wrong in such circumstances.
Carborough Downs Coal matters
Facts
Carborough Downs Coal Management Pty Ltd operates a coal mine in an area south-west of Mackay near Coppabella.
On 7 September 2019, an accident occurred where part of the coal mine roof collapsed, injuring a worker, Mr Cameron Best (the Best incident).
On 25 November 2019, another incident occurred where material fell from a coal face, killing a mine electrician, Mr Bradley James Duxbury (the Duxbury incident).
As a consequence of the Best incident, the WHSP swore five complaints alleging offences against the CMSH Act. Each of the Best defendants were summonsed to appear at the Industrial Magistrates Court at Mackay on 20 April 2021. The Industrial Magistrates Court did have jurisdiction to hear the complaints.
As a consequence of the Duxbury incident, the WHSP swore three further complaints alleging offences against the CMSH Act. Each of the Duxbury complaints were accompanied by a summons commanding the attendance of each of the Duxbury defendants at the Magistrates Court at Mackay on 23 March 2021 (not the Industrial Magistrates Court). Ostensibly, the Duxbury defendants were summonsed to the wrong court. Ultimately, it was held that the summons were valid as they required the attendance of the defendants at a place where the Industrial Magistrates Court sits. As will be seen though, that conclusion was only reached through a tortuous litigious path.
Proceedings before the magistrate
All defendants filed applications to have the complaints struck out.
The Best defendants raised two grounds in support of their strike-out applications. First, that the complaint was void as it did not invoke the jurisdiction of the Court, and second, that the summons be struck out because the complaint was a nullity.
The Duxbury defendants raised similar grounds in support of their strike-out applications. However, they had a second string to their bow. They argued that the jurisdiction of the Industrial Magistrates Court was not enlivened by a summons to appear in the Magistrates Court, which clearly had no jurisdiction to hear the complaints.
The strike-out applications made in the Best complaints were filed in the Industrial Magistrates Court. The strike-out applications brought in the Duxbury complaints were filed in the Magistrates Court.
On 9 December 2021, the magistrate heard all of the strike-out applications together. His Honour delivered judgement on 21 February 2022.
His Honour made orders in relation to the Best complaints undoubtedly in his capacity as an industrial magistrate. His Honour made orders in respect of the Duxbury complaints purportedly in his capacity as a magistrate.
His Honour held that all complaints were void. The Best complaints were struck out because:
- the complaints did not specify the Magistrates Court district in which the offences allegedly occurred
- the complaints did not make express reference to section 255 of the CMSH Act, and therefore, did not enliven the Industrial Magistrates Court jurisdiction.
In addition to those two reasons, the Duxbury complaints were struck out because the summons referred to the “Magistrates Court” rather than the “Industrial Magistrates Court”, and the Magistrates Court had no jurisdiction to hear the Duxbury complaints.
Appeals against the strike-out decision
On 22 August 2022, the WHSP filed appeals against the strike-out decision in the ICQ. The WHSP also filed appeals in the District Court against the orders made, striking out the Duxbury complaints.
The rationale for also filing appeals in the District Court was that the orders were purportedly made in the Magistrates Court and appeals from the Magistrates Court lie to the District Court.
ICQ strike out applications
The Duxbury defendants made applications to the ICQ to strike out the appeals on the basis that the ICQ had no jurisdiction to hear any appeal from the Magistrates Court.
Justice Davis, President, rejected the submission that the issues raised on the appeals were as straightforward as those submitted by the Duxbury defendants. Proceedings may only be summarily dismissed in the clearest cases.
The ICQ strike-out applications were dismissed on 28 October 2022.
However, his Honour noted that the WHSP was arguably seeking the wrong relief in the wrong proceeding. Rather than appealing the magistrate’s decision in relation to the Duxbury defendants, the appropriate relief was prerogative relief, compelling the exercise of the Industrial Magistrates Court’s jurisdiction.
One of the other issues raised in the ICQ strike-out applications was whether or not the appeals should be stayed until the District Court proceedings were finalised. On that issue, his Honour held:
“It is, with respect, difficult to see the utility of the appeals to the District Court…
The real issue is whether or not the complaints invoked the jurisdiction of the Industrial Magistrates Court. Resolution of that issue determines whether or not this Court has jurisdiction to hear the appeals. It is appropriate for this Court, not the District Court, to determine whether this Court has jurisdiction to hear the appeals. Further, if any prerogative orders are sought, this Court, not the District Court, has jurisdiction.[2] No stay ought be granted.”
That passage shows the clash of the two systems – one established to deal generally with criminal offences, and the other a specialised industrial system established under the IR Act.
In our next instalment, we highlight the difficulties which can arise after becoming entangled between these two systems. We continue discussing the litigation which has unfolded in the Carborough Downs Coal matters, including applications for prerogative relief, appeals to the Court of Appeal, costs applications, and further interlocutory issues. We will then conclude by discussing the implications arising from the Carborough Downs Coal litigation.
If you have any questions about this article, please get in touch with a member of our team below.
[1]Gore v Carborough Downs Coal Management Pty Ltd & Ors [2022] ICQ 31; Nicholson v Carborough Downs Coal Management Pty Ltd & Ors [2022] ICQ 34; Nicholson v Carborough Downs Coal Management Pty Ltd & Ors (No 2) [2023] ICQ 3; Nicholson v Carborough Downs Coal Management Pty Ltd & Ors (No 3) [2023] ICQ 4; Nicholson v Carborough Downs Coal Management Pty Ltd & Ors (No 4) [2023] ICQ 5.
[2] Industrial Relations Act 2016, section 424(1)(e).
Disclaimer
The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.