Alternative charges, amendment of complaint & jurisdictional error

Thiess Pty Ltd v President of the Industrial Court of Queensland & Anor [2011] QSC 294

By way of judicial review the applicant sought certiorari relief setting aside the decision and orders of the Industrial Court and declarations premised on jurisdictional error. The Industrial Magistrate amended the complaint by the deletion of the words “In the alternative”, which decision was upheld on appeal to the Industrial Court. The applicant’s grievance was the alternative charges and the subsequent amendment failed to comply with s.43 of the JA and consequently there was no power pursuant to s.48 of the JA to amend the complaint and hence the Industrial Court decision to dismiss the appeal likewise was infected by jurisdictional error. 

The applicant’s grievance stemmed from the inclusion of the words “In the alternative” in the complaint. It submitted these words did not comply with s.43 of the Justices Act 1886 (Qld) (“JA”) because it made the defendant face two separate charges, which were not in the alternative or joined.  The applicant further submitted it was not a matter capable of being cured by amendment pursuant to s.48 JA and that if the words were removed the Complaint was liable to being  struk out (in terms of Hayes v Wilson).  On this basis, the applicant submitted it was a jurisdictional error to delete the wording.

The nature of the judicial review was limited by s 349 of the Industrial Relations Act 1999 (Qld). I refer you to the earlier postings regarding decision of Kirk and  of NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland in respect of such limitations.

Applegarth J

[21] Because the relevant facts and law had been so comprehensively canvassed in the decision of the learned Industrial Magistrate, the decision of the Industrial Court on appeal was relatively brief. After summarising the relevant facts, including the applicant‘s contention that the complaint should be struck out in its entirety, the President of the Industrial Court concluded that the Industrial Magistrate was right to exercise the power to amend the complaint under s 48 of the Justices Act by deleting the words ―In the alternative, instead of striking out the complaint. The President stated:

[7] The charges were not alternatives. The words ‘in the alternative‘ had no legal effect. Accepting that the words were neither a slip nor an inadvertent error, but words used consciously in an attempt to plea [sic] in the alternative, the subjective intention of the Complainant could not give the words an effect which they did not have. This was not a case in which the power to amend was lost for non-compliance with s. 43 of the Justices Act 1886 (see s. 48(a) of that Act). The words being ineffectual surplusage could not cause the Complaint to fail to comply with s. 43. Where s. 43 permits joinder, the section does not require that the charges be numbered. Indeed, as I understand the argument, it is conceded that if the final form of the Complaint had been the form from the outset, all would be well.

[8] It was not the effect of the amendment that Thiess Pty Ltd was for the first time, after expiry of the limitation period, exposed to the risk of conviction both for failure to discharge the obligation at s. 28(1) of the Act and of the obligation at s. 31 of that Act. Only if the words ‘in the alternative‘ had legal effect would the original wording have so limited the Complaint. As amended, the Complaint has the meaning which it always truly carried. It was ‘desirable in the interests of justice‘ (s. 48 of the Justices Act 1886) that the ineffective and surplus language be removed.

[26] With respect to the learned Industrial Magistrate, and the learned President of the Industrial Court, the issue of whether the complaint complied with s 43 is not resolved by pointing to the fact that the separate and distinct charges could have been joined, as the applicant acknowledged. There is nothing incongruous in the applicant submitting to the Industrial Magistrate that the complaint was defective for non-compliance with s 43 because of the inclusion of the words “In the alternative”, and seeking the alternative relief of requiring the complainant to choose one of the matters of complaint on which to proceed at the hearing. This was a form of alternative relief. The primary form of relief sought by the applicant was to have the complaint and summons struck out.

[27] The fact that the applicant might have been charged originally by a form of complaint that did not include the words ―In the alternative, and that, if that had happened, the complainant would have complied with s 43, does not render the words “In the alternative” ineffectual surplusage or words that had no legal effect. Their inclusion had the effect of rendering the complaint defective.

[28] One begins with the fact that the complaint was not in a form authorised by s 43. Had it not been defective, an application by the complainant to remove the words “In the alternative” would not have been necessary, and would not have been made.

[30] The fact that the inclusion of the words could not, as a matter of law, have the effect that the complainant intended does not make the words of no effect or meaningless. The words meant, and would reasonably have been understood to mean, that the applicant faced conviction for one of the two offences that were pleaded in the alternative. They have the effect, absent an application to strike out the complaint, that, upon the point being taken, the complainant would be required to choose which of the two matters of complaint would proceed.

[31] The use of the words “In the alternative” had legal consequences and, as the Industrial Magistrate observed, their removal had the effect that the applicant faced two separate charges. One of the consequences of including the words was that the complaint could not proceed in that form following the applicant‘s objection to it. The complaint was vulnerable to being struck out, at least in part, unless the power to amend arose, and a suitable case to exercise the power was made out.

[32] I am unable to accept the President‘s view that the words “In the alternative” had no legal effect. They had legal effect, though not the effect that the complainant apparently intended them to have. Absent objection by the applicant to the form of the complaint, the applicant was exposed to conviction on one of the alternative charges and, given the expiry of the limitation period, the applicant was not at risk of being convicted on the alternative summary charge. In the event of an objection by the applicant, the continuation of the prosecution of both charges depended on the availability of amendment, and that, in turn, depended on whether the complaint complied with s 43.

[35] The appropriate starting point is the complaint, as brought, and to ask whether a power exists to amend it so as to achieve the result sought by the complainant, namely that the applicant should face two separate charges which are not cast in the alternative. The existence of the power to amend under s 48 depends, in this case, on whether the complaint complied with s 43. I accept the applicant‘s submission that the complaint did not comply with s 43. Because it did not comply with s 43, the defect in the complaint that arose because of a non-compliance with the provisions of s 43 was not one that attracted the power to amend under s 48.

[38] I conclude that the complaint that purported to charge the applicant with summary offences “In the alternative” did not comply with s 43 of the Justices Act. The complaint purported to charge two matters in the alternative. These matters were not joined in accordance with s 43. Because the complaint did not comply with s 43 the power to amend pursuant to s 48 was not available. The first respondent erred in concluding that power existed under s 48 for the Industrial Magistrate to remove the words “In the alternative”.

[42] The application to appeal was properly constituted and it invited the Industrial Court to find that the Magistrate had erred. The issue of whether the Magistrate had erred was one that the Industrial Court had jurisdiction to determine. Misinterpretation of s 43 and s 48 of the Justices Act by the first respondent cannot be regarded as an error apt to deprive him of the authority to determine the appeal which came before him. The principles discussed by the Court of Appeal in Parker v President of the Industrial Court of Queensland in the context of the interpretation of substantive provisions of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) also apply to the task of interpreting the provisions of the Justices Act. The principles of jurisdictional error discussed by Keane JA (with whom Fraser JA and White J agreed) in Parker are apposite in the present context. Simply put, in this case, the issue was whether the Industrial Magistrate erred in the respects alleged in the application to appeal. That was a matter committed to the Industrial Court to decide. Its decision that the Industrial Magistrate did not err was made in the course of exercising its appellate jurisdiction.

[43] The issue then becomes whether, in the course of exercising the jurisdiction committed to it, the Industrial Court committed a “jurisdictional error”. There may be no bright line separating jurisdictional errors from errors within jurisdiction. The High Court in Kirk rejected the idea that there is “a rigid taxonomy of jurisdictional error.” The three examples of jurisdictional error given in Craig v South Australia did not mark the boundaries of the relevant field. However, in this case the applicant relies upon jurisdictional error arising in respect of the third example given in Craig, namely misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case.

[44] I have found that the Industrial Court fell into error in upholding the Industrial Magistrate‘s construction of ss 43 and 48 of the Justices Act, or his application of those sections to the facts. To the extent that the Industrial Court can be said to have misconstrued s 43 and s 48, it incorrectly decided something which it was authorised to decide. It was not a decision outside the limits of the functions and powers conferred on the Industrial Court, which would thereby render it a jurisdictional error. Any misinterpretation of ss 43 or 48 of the Justices Act did not involve a misconception by the President of the nature of the function that he was performing or the extent of the Industrial Court‘s powers in the circumstances of the particular case. The President of the Industrial Court decided points raised on appeal, including the proper interpretation of ss 43 and 48 of the Justices Act and their application to the circumstances at hand. The decision of the Industrial Court was one which the Industrial Court was authorised to decide and was an error within jurisdiction.

[46] I accept the applicant‘s submission that the learned Industrial Magistrate misinterpreted a precondition to the exercise of the power to amend under s 48. In doing so, the Industrial Magistrate made a jurisdictional error because he made a decision outside the limits of the power to amend conferred on him. The Industrial Court can be said to have made the same error of interpretation in respect of the relevant provisions. However, the error that it made in this regard was about something which the Industrial Court was authorised to decide. It was an error within jurisdiction.

[47] After the hearing before me, I referred the parties to the decision in NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland and invited submissions in relation to it. In that case, an applicant sought to review a decision of the President of the Industrial Court dismissing an appeal from a decision of an Industrial Magistrate in a complaint brought against the applicant alleging a breach of the WHS Act. The issue related to the validity of the complaint. Justice Boddice found that the complaint was not a nullity but that, in dismissing the appeal, the President of the Industrial Court, whilst accepting that there are occasions when a complainant may be required to particularise inadequacies in precautions or lapses in diligence, erroneously held that there was no obligation on a complainant to particularise “the measures not taken” so as to apprise a defendant of the case it was to meet in preparing any defence. Justice Boddice continued:

“That finding did not involve the application of established law to the facts as found by the first respondent. That finding constituted a misconstruction of the relevant statute and a misconception of the extent of the Court‘s powers in the particular case in relation to a matter which was specifically the subject of a ground of appeal before the first respondent. As such, the finding constitutes a jurisdictional error as that term is identified in Kirk.”

This passage suggests that a jurisdictional error will occur in a case in which the Industrial Court misconceives the extent of its powers in the particular case in relation to a matter which is specifically the subject of a ground of appeal before it. I accept that proposition and also the general proposition that a jurisdictional error will occur if the Industrial Court misconceives the extent of its powers. I do not understand the passage to mean that the Industrial Court falls into jurisdictional error whenever it misinterprets or misapplies statutory provisions that are the subject of a ground of appeal to it.

 

[50] In the end result, the Industrial Court made an error concerning the exercise of the Industrial Magistrate‘s power to amend in relation to a matter of substance. It was something about which the Industrial Court was authorised to decide. It was not an error about the extent of the Industrial Court‘s functions and powers. It was an error about the extent of the Industrial Magistrate‘s powers and whether the power to amend under s 48 arose in the circumstances. It was not, however, a jurisdictional error by the Industrial Court.

[52] I consider that it is an appropriate exercise of the supervisory jurisdiction of the Court to make orders that have the effect of not exposing the applicant to a conviction by reason of a jurisdictional error by the Industrial Magistrate. The applicant should not be exposed to conviction on two separate and distinct offences in circumstances where it finds itself in that position by reason of a jurisdictional error.

[53] Because I have not made an order in the nature of certiorari setting aside the decision and orders of the first respondent, I do not consider that it is presently appropriate to make an order remitting the matter to the Industrial Court for further consideration. Instead, I am inclined to make declarations substantially in the form sought in paragraphs 3 and 4 of the application for review. If those declarations are made, then the Industrial Magistrate can consider the future course of the proceedings, having heard the submissions of the parties. One possible course would be to strike out part of the complaint after the second respondent/complainant has been required to choose upon which of the two matters of complaint in the amended complaint and summons it wishes to proceed.

 

Brisbane Barrister – David Cormack

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