OHS: complaints and amendments

Karimbla Construction Services Pty Ltd v President of the Industrial Court [2014] QSC 56

Administrative law – Prerogative writs and orders – Certiorari – where complaint made of offence under Workplace Health and Safety Act 1995 (Qld) – where application to strike out charges dismissed and appeal dismissed – where applicant alleges failure to particularise acts or omissions constituting the offence – whether complaint inadequately pleaded or particularised – whether defect capable of cure by amendment – s.48 Justices Act 1886 whether complaint invalid – whether decisions attended by jurisdictional error

The applicant sought orders of certiorari quashing the prior first instance and appellate decisions on the basis of jurisdictional error, namely that the complaint was defective because it failed to allege particular acts or omissions to found the charge.

Jackson J

Held, dismissing the application:

  1. The question to be determined is whether the complaint contains allegations that are not sufficient but capable of amendment and those which are so defective they are incapable of amendment [33];
  2. NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland [2013] QCA 179 applied  – that a complaint must allege particulars of the acts or omissions constituting an offence [37];
  3. The reasoning in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 –  distinguished to the extent that no application in Kirk was made for amendment [36], [38] & [60];
  4. The particular provided is a particular of an omission constituting the offence;
  5. In any event, the failure to allege a particular of a relevant act or omission constituting an offence does not render the complaint invalid and incapable of amendment under s.48 of the Justices Act 1886 (Qld)[59].

 

David Cormack – Brisbane Barrister & Mediator

 

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