SUPREME COURT OF QUEENSLAND

CITATION:	Carborough Downs Coal Management Pty Ltd v Nicholson; Uhr v Nicholson [2023] QCA 119	
PARTIES:	In Appeal No 414 of 2023:
CARBOROUGH DOWNS COAL MANAGEMENT PTY LTD
(appellant)
v
SIMON NICHOLSON (WORK HEALTH AND SAFETY PROSECUTOR)
(first respondent)
ACTING MAGISTRATE ATHOL KENNEDY
(second respondent/not a party to the appeal)
In Appeal No 425 of 2023:
RUSSELL CLIVE UHR
(appellant)
v
SIMON NICHOLSON (WORK HEALTH AND SAFETY PROSECUTOR)
(first respondent)
ACTING MAGISTRATE ATHOL KENNEDY
(second respondent/not a party to the appeal)	
FILE NO/S:	Appeal No 414 of 2023
Appeal No 425 of 2023
ICQ No 17 of 2022
ICQ No 18 of 2022	
DIVISION:	Court of Appeal	
PROCEEDING:	General Civil Appeal	
ORIGINATING COURT:	
Industrial Court of Queensland – [2022] ICQ 34 (Davis J)	
DELIVERED ON:	2 June 2023	
DELIVERED AT:	Brisbane	
HEARING DATE:	11 May 2023	
JUDGES:	Mullins P and Flanagan and Boddice JJA	
ORDERS:	In Appeal No 414 of 2023:
1.	The appeal be dismissed.
2.	The appellant pay the first respondent’s costs of, and incidental to, the appeal.
In Appeal No 425 of 2023:
1.	The appeal be dismissed.
2.	The appellant pay the first respondent’s costs of, and incidental to, the appeal.	
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – PROCEDURE AND EVIDENCE – EXTENSION OF TIME – GENERALLY – where the primary judge granted the first respondent an extension of time under s 46(1)(b) of the Judicial Review Act 1991 (Qld) to commence applications for prerogative relief in the nature of certiorari – where the appeal is limited by s 554(1) of the Industrial Relations Act 2016 (Qld) to the ground of error of law or excess, or want, of jurisdiction – where the appellants submit that the primary judge made errors of law – where the primary judge did not misdirect himself as to the applicable principles – where the error of law must therefore be an error in the primary judge’s application of the applicable principles – where the primary judge considered whether there was an acceptable explanation for delay – where the primary judge considered whether it was fair and equitable in the circumstances to grant the extension – where the primary judge calculated the period of delay in seeking relief in the nature of certiorari – where the primary judge considered whether there was any evidence of prejudice that would impact the ability to achieve a fair trial – whether the primary judge, in exercising the discretion to extend time, made an error of law
Coal Mining Safety and Health Act 1999 (Qld), s 34, s 255(1)
Industrial Relations Act 2016 (Qld), s 424(1)(e), s 554(1), s 556
Judicial Review Act 1991 (Qld), s 43, s 46
Batterham v QSR Ltd (2006) 225 CLR 237; [2006] HCA 23, cited
Chibanda v Chief Executive, Queensland Health & Anor [2018] QSC 128, cited
Comcare v A’Hearn (1993) 45 FCR 441; [1993] FCA 498, cited
Gore v Carborough Downs Coal Management Pty Ltd & Ors [2022] ICQ 031, related
Haining v Drake (1998) 87 FCR 248; [1998] FCA 1168, cited
Highway Hotel Pty Ltd v City of Bunbury [2001] WASCA 385, applied
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176, applied
Lambert v Dalzeill & Ors [1995] QSC 48, approved
Lovett v Le Gall (1975) 10 SASR 479; [1975] SASC 2385, cited
Lucic v Nolan (1982) 45 ALR 411; [1982] FCA 232, cited
Newby v Moodie (1988) 83 ALR 523, cited
Pilbara Infrastructure Pty Ltd v Australian Competition Tribunal (2011) 193 FCR 57; [2011] FCAFC 58, cited
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15, cited
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13, cited
R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; [1953] HCA 22, followed
Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 296 ALR 307; [2013] FCAFC 26, applied
Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1993) 178 CLR 379; [1993] HCA 40, followed
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; [2003] HCA 30, cited
Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 819; [2022] HCA 28, followed	
COUNSEL:	C J Murdoch KC, with J A Bremhorst, for the appellant in Appeal No 414 of 2023 and for the appellant in Appeal No 425 of 2023
B J Power KC, with B P Dighton, for the first respondent Appeal No 414 of 2023 and for the first respondent in Appeal No 425 of 2023
No appearance for the second respondent in Appeal No 414 of 2023 and for the second respondent in Appeal No 425 of 2023	
SOLICITORS:	McCullough Robertson for the appellant in Appeal No 414 of 2023 and for the appellant in Appeal No 425 of 2023
Office of the Work Health and Safety Prosecutor for the first respondent Appeal No 414 of 2023 and for the first respondent in Appeal No 425 of 2023
No appearance for the second respondent in Appeal No 414 of 2023 and for the second respondent in Appeal No 425 of 2023	
[1]	MULLINS P:  I agree with Flanagan JA.
[2]	FLANAGAN JA:  Both of these appeals are from a decision of the President of the Industrial Court of Queensland (Industrial Court) to grant the first respondent, the Work Health and Safety Prosecutor (WHSP), an extension of time to commence applications for prerogative relief.
[3]	That decision was a discretionary exercise of power under s 46(1)(b) of the Judicial Review Act 1991 (Qld) (JRA).
[4]	Without leave, appeals to this Court from the Industrial Court are limited pursuant to s 554(1) of the Industrial Relations Act 2016 (Qld) (IR Act) to appeals grounded in errors of law or excess, or want, of jurisdiction.
[5]	The appellants each submit that in exercising the discretion, the learned primary judge made errors of law by:
(a)	failing to consider whether there existed an acceptable explanation for delay, and by failing to determine that there was not (Ground 1);
(b)	failing to consider whether it was fair and equitable in the circumstances to grant the extension, and by failing to determine that it was not (Ground 2);
(c)	failing to determine and apply the correct period of delay (Ground 3);
(d)	finding, and taking into account, that there was no evidence to suggest that a fair trial cannot be achieved for the appellants, when there was no basis upon which to make the finding (Ground 4); and
(e)	failing to consider that the first respondent acquiesced to the Magistrates Court jurisdiction (Ground 5).
[6]	Ground 5 was abandoned by the appellants at the hearing of the appeals.
[7]	For the following reasons, the appellants have not demonstrated any error of law in the exercise of the discretion to extend time by the primary judge.
Background
[8]	The first respondent to both appeals, Mr Nicholson, presently holds the position of the WHSP.  The appellants, Carborough Downs Coal Management Pty Ltd (Carborough) and Mr Russell Uhr, are a coal mine operator and a Site Senior Executive, respectively.
[9]	By complaints sworn 24 November 2020, the WHSP commenced criminal prosecutions against each of the appellants in respect of incidents that occurred at the Carborough Downs Coal Mine.
[10]	Those complaints, relating as they did to offences under s 34 of the Coal Mining Safety and Health Act 1999 (Qld) (CMSH Act), invoked the jurisdiction of the Industrial Magistrates Court.  The summonses accompanying the complaints, however, commanded each of the appellants to appear “at the Magistrates Court”, not the Industrial Magistrates Court.  It is common ground that the Magistrates Court has no jurisdiction to hear the complaints.
[11]	On that basis, the appellants each filed applications to strike out the complaints.  On 19 August 2021, those applications came before Magistrate Morton for mention.  Purporting to sit in the Magistrates Court, the learned magistrate made directions for the hearing of the strike-out applications.  The following exchange then occurred between counsel for the WHSP and Magistrate Morton regarding whether the strike-out applications were to proceed in the Industrial Magistrates Court or the Magistrates Court:
“MS BROADBENT: Your Honour, just for clarity, have you determined the jurisdiction? Will it be to the industrial or to the Magistrates - the Industrial Magistrates or the Magistrates Court?
HIS HONOUR: Well, at this stage … the summons is the Magistrates Court jurisdiction. If this matter is to be considered further, it will need to be done at the appropriate time.”
[12]	On 9 December 2021, full argument of the strike-out applications was heard by Acting Magistrate Kennedy, the second respondent to each of these appeals.  Sitting as an acting magistrate in the Magistrates Court, the second respondent decided to strike out each of the complaints (and also the summonses) on the basis that they failed to invoke the required jurisdiction of the Industrial Magistrates Court.  The learned acting magistrate gave three reasons for declining to exercise the jurisdiction of the Industrial Magistrates Court:
(a)	The complaints failed to invoke the jurisdiction of the Industrial Magistrates Court because they did not state on their face the Magistrates Court district in which the offences occurred;
(b)	The complaints failed to invoke the jurisdiction of the Industrial Magistrates Court because they did not make express reference on their face to s 255 of the CMSH Act and the “Industrial Magistrates Court”;
(c)	The summonses commanded appearances before “the Magistrates Court”, rather than the Industrial Magistrates Court, which, together with the reasoning in (a) above, meant the correct jurisdiction had not been invoked.
[13]	The reasons for that decision were handed down on 21 February 2022, however, no orders striking out the complaints were made until 2 August 2022.
[14]	Aside from making a submitting appearance in the court below, the second respondent has taken no further part in these proceedings.
[15]	On 22 August 2022, the WHSP appealed from the decision of the second respondent to the Industrial Court.  This was done because appeals from the Industrial Magistrates Court are to the Industrial Court.  The argument of the WHSP was that, notwithstanding the second respondent’s decision at first instance, the complaints enlivened the jurisdiction of the Industrial Magistrates Court, so the second respondent was, in law, exercising that jurisdiction.
[16]	On 4 October 2022, the appellants filed applications to strike out those appeals.  They each submitted that the Industrial Court had no jurisdiction to hear the appeals because no appeal lies from the Magistrates Court to the Industrial Court.  Those strike-out applications were dismissed by the President of the Industrial Court, who observed:
“[26]	The summons is not part of the complaint. The summons serves the purpose of securing the defendant’s attendance. Arguably, having been in possession of a complaint enlivening the magistrate’s powers as an Industrial Magistrate, that was the power he was, as a matter of law, exercising. Arguably, the title on the written order is a matter of form only.
[27]	However, the appellant may be seeking the wrong relief in the wrong proceeding. The magistrate is obliged to hear the complaints and proceed according to law. If the complaints enliven the jurisdiction of the Industrial Magistrates Court, but the magistrate instead purports to sit in the Magistrates Court and dismisses the complaints, prerogative relief in the nature of certiorari compelling the exercise of the Industrial Magistrates Court’s jurisdiction may be the appropriate relief.”
[17]	On 8 November 2022, the WHSP filed applications for prerogative orders in the nature of certiorari quashing the strike-out orders purportedly made by the second respondent and referring the complaints to the Industrial Magistrates Court to be dealt with according to law.  Originally, those applications were filed in the appeals to the Industrial Court, however, orders were subsequently made that the applications were to be regarded “as commencing a claim for prerogative relief and stand alone independently of the appeals”.
[18]	While the appeals to the Industrial Court were brought within time, they were later dismissed by consent, leaving only the applications for prerogative relief.  On any argument, those applications were out of time.  The issue before the primary judge was whether an extension of time should be granted in the circumstances.
Discretion to extend time under s 46(1)(b) of the JRA
[19]	The first respondent seeks to engage the prerogative powers provided for by s 424(1)(e) of the IR Act.  That provision provides a discretion for the Industrial Court to grant prerogative relief by exercising the jurisdiction and powers of the Supreme Court.
[20]	In Queensland, prerogative relief can only be sought by way of an application for review pursuant to Part 5 of the JRA.  The time for making such an application is set out in s 46 of the JRA.
[21]	Section 46 of the JRA provides:
“46	Time of making application
(1)	Subject to any other enactment, an application for review must be made—
(a)	as soon as possible and, in any event, within 3 months after the day on which the grounds for the application arose; or
(b)	if the court extends the period of 3 months—before the end of the extended period.
(2)	If the relief sought in an application for review is a certiorari order in relation to any judgment, order, conviction or other proceeding, the day on which the grounds for the application arose is, for the purposes of subsection (1), taken to be the day of the making of the judgment, order, conviction or other proceeding.”
[22]	In circumstances where the IR Act is silent as to the time for making an application for prerogative relief, the prima facie rule is that applications commenced outside the three-month period prescribed by s 46(1)(a) will not be entertained.
[23]	By s 46(1)(b), however, the Supreme Court retains a discretionary power to extend the time for making an application.  That provision does not, in terms, provide any guidance as to how the discretion is to be exercised, nor does it place any onus of proof upon an applicant.  It is nevertheless common ground that a court will not grant an extension unless it is positively satisfied that it is proper so to do.
[24]	In Tu’uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Tu’uta Katoa), the High Court confirmed that in the absence of any mandatory considerations for determining whether to exercise a discretion to extend time, it is appropriate to refer to the “well established principles” guiding decisions under s 11 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) that were distilled by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (Hunter Valley Developments).
[25]	Those principles, as they have been applied in subsequent cases such as Tu’uta Katoa, Lambert v Dalzeill & Ors (Lambert) and Chibanda v Chief Executive, Queensland Health & Anor, include:
(a)	that the applicant show an acceptable explanation for the delay and that it is fair and equitable in the circumstances to extend time;
(b)	the extent of the delay;
(c)	the prejudice to the respondent, including any prejudice in defending the proceedings occasioned by the delay;
(d)	the interests of the public at large; and
(e)	the merits of the substantial application, at least to the extent they are revealed by an impressionistic assessment of the proposed grounds.
[26]	As the parties at the hearing of the present appeals accepted, there is no reason why those principles, which are of general application, would not apply to a decision to extend time under s 46(1)(b).  This view accords with the approach adopted in Lambert by Ambrose J, who considered the principles to apply in that context.
[27]	By no means are the principles listed above exhaustive of the factors relevant to an extension of time, nor are they to be treated as statutory criteria.  Rather they are a “guide to the exercise of an open-textured discretion”.  A consideration of one principle may necessarily inform the consideration of another.  For example, notions of prejudice and public interest necessarily incorporate a consideration of whether it is fair and equitable in the circumstances to exercise the discretion to extend time.
[28]	That is not to deny, however, that there may be circumstances where, by failing to consider a particular consideration in the context of a particular case (such as an explanation for delay), a court may be found to have misconceived the nature of the power being exercised under s 46(1)(b) (or otherwise as the case may be).
[29]	In certain cases, one consideration might gain particular significance or additional considerations may become relevant, particularly where, as is the case here, the proceedings concern a criminal prosecution.  In such cases, any consideration of the public interest in the prosecution of offenders will need to be weighed in the balance with the public interest in the fair and just conduct of prosecutions.
The present appeals
[30]	At no stage did the primary judge misdirect himself as to the applicable principles as they are identified above.  Under the heading “Principles relevant to extensions of time”, his Honour quoted at length from Hunter Valley Developments and noted the recent approval of that decision by the High Court in Tu’uta Katoa.
[31]	Any error of law to be demonstrated by the appellants must therefore be an error in his Honour’s application of those principles to the present case.
Ground 1 – Failing to consider whether there existed an acceptable explanation for delay, and failing to determine that there was not
[32]	As to the explanation for delay, the primary judge found at [117] of the Reasons:
“5.	the delays are explained by the negligence of [the WHSP] and the failure of others to appreciate that prerogative relief was the most appropriate remedy;
6.	once advice was received that the appropriate remedy was prerogative in nature;
(a)	applications were promptly filed;
(b)	relatively quickly, the appeals were abandoned;
(c)	the applicant agreed to pay the respondents’ costs of the appeals on the indemnity basis.”
(footnote in original)
[33]	These findings were based on an acceptance of the evidence of a Ms Milbourne, a barrister engaged by the office of the WHSP, who was not cross-examined.  By an affidavit filed in each application, Ms Milbourne swore:
“1.	a decision was made on 22 August 2022 to appeal the decision of the second respondent made 2 August 2022;
2.	appeals were filed;
3.	before 4 November 2022, the office of the WHSP had no advice that applications for prerogative relief were appropriate;
4.	no consideration had been given to that issue;
5.	counsel’s advice that prerogative relief should be sought was received on 4 November 2022;
6.	the applications were filed on 8 November 2022.”
[34]	Under the heading “Explanation for delay”, the primary judge further observed:
“[74]	What is clear is that within a short period of time after the second respondent struck out the complaints, the applicant appealed. Those appeals challenged the decisions to strike out the complaints. It is not logical to assume that the applicant’s predecessors would have made a conscious decision not to seek prerogative relief if they knew that was the appropriate relief. …
[75]	The circumstances of these cases are unusual. The applicant was faced with orders made by the second respondent where the avenue of appeal depended on whether the second respondent was sitting as the Magistrates Court or the Industrial Magistrates Court. The applicant tried its best to challenge the decisions but did not adopt the most appropriate procedure. Once the suggestion was made that appeals might not be appropriate and that perhaps prerogative relief was, the appeals were abandoned and appropriate applications for prerogative relief were made.
[76]	The prosecution of the three respondents has been calamitous. Various errors have been made from the point in time of preparation of the draft summonses. The mistakes have all been honest ones and the delays have been caused by those errors of judgment.”
[35]	To the extent that Ground 1 contends that the primary judge failed to consider that there was no evidence of any acceptable explanation for delay, it must fail.  The affidavit evidence of Ms Milbourne, which was not challenged by the appellants, went directly to that issue.  It stated, in terms, that “no consideration was given to [seeking prerogative relief] by the OWHSP’s office until advice … was received from counsel”.  That evidence alone provides support for the explanation for delay that was identified by the primary judge at [117](5), namely that there had been a failure by the office of the WHSP to appreciate that prerogative relief was the most appropriate remedy.
[36]	In circumstances where there was unchallenged evidence of an explanation for delay before his Honour, it is implicit in Ground 1 that the appellants contend an alternative conclusion should have been reached on the available evidence.  However, even if that were so, no error of law would arise because the weight to be attributed to particular evidence is a matter of fact, not law.  As was observed by Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002, “it is not the role of a supervising court to form its own view of the weight to be given to different elements of the evidence”.
[37]	As it was argued by the appellants at the hearing, Ground 1 further contends that in considering whether there was an explanation for delay, no assessment was undertaken by the primary judge as to whether that explanation was “acceptable”.
[38]	The difficulty with this submission is, as Templeman J observed in Highway Hotel Pty Ltd v City of Bunbury, “the quality of the explanation cannot be viewed in isolation: it should be weighed in the balance with any other relevant considerations”.  In other words, it is not the case that the explanation for delay must itself be objectively acceptable, provided there are other relevant considerations capable of persuading the decision maker that it is proper to grant the extension.
[39]	As Wilcox J relevantly observed in Hunter Valley Developments:
“Action taken by the applicant, other than by making an application for review under the [AD(JR)] Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not ‘rested on his rights’: per Fisher J in Doyle v Chief of Staff (1982) 42 ALR 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. … The reasons for this distinction are not only the ‘need for finality in disputes’ (see Lucic v Nolan (1982) 45 ALR 411 at 410) but also the ‘fading from memory’ problem referred to in Wedesweiller v Cole (1983) 47 ALR 528.”
(emphasis added)
[40]	It is apparent from the primary judge’s reasoning at [74]-[76] that his Honour did not consider this to be a case where the first respondent had “rested on its rights”.  The first respondent had “tried its best to challenge the [strike-out] decision” by way of appeals.  His Honour also rejected that there had been a conscious decision by the first respondent not to pursue prerogative relief.
[41]	Having weighed the explanation for the delay in the balance with the action taken by the first respondent to contest the finality of the strike-out decision, the primary judge considered the first respondent’s failure to “adopt the most appropriate procedure” to be no more than an “honest mistake”.  When viewed in the context of [74] and [75] of the Reasons, that finding, which is not challenged on appeal, can only be understood as an evaluation of whether the explanation for delay was acceptable.
[42]	Ground 1 must fail as no error of law has been demonstrated by the appellants in respect of the primary judge’s consideration of whether there was an acceptable explanation for delay.
Ground 2 – Failing to consider whether it was fair and equitable in the circumstances to grant the extension, and failing to determine that it was not
[43]	As formulated, this ground of appeal contends that the primary judge gave no consideration to whether it was fair and equitable in the circumstances to grant the extension.  That proposition, however, is inconsistent with a plain reading of his Honour’s reasons.  It is convenient to canvass the relevant aspects of his Honour’s reasoning below.
[44]	In assessing whether it was fair and equitable in the circumstances to grant the extension, the primary judge expressly identified the specific prejudice alleged by each of the appellants due to the delay.
[45]	The specific prejudice alleged by Carborough was set out by his Honour at [81]-[86] of the Reasons.  In essence (as it was summarised by his Honour), Carborough’s primary concern was that the ongoing prosecution may lead to a determination by the Clean Energy Regulator that it is not a “fit and proper person” to participate in the Emissions Reduction Fund.  This would affect the viability of various projects and, if emissions are exceeded, create both civil and criminal liability.  Further, the ongoing nature of the prosecution and the potential impact of being unable to participate in the Emissions Reduction Fund was said to have caused prejudice by:
(a)	heightening the financial and commercial risk perceived by Carborough’s financiers; and
(b)	creating uncertainty for Carborough’s shareholders in terms of their ability to sell their shares, and as to the capital value of those shares.
The primary judge, however, noted that at this stage no particular financing arrangements or share sales were alleged to be in jeopardy.
[46]	The specific prejudice alleged by Mr Uhr was set out at [87]-[91] of the Reasons.  His Honour observed that although Mr Uhr remains employed by Carborough, he has been moved to a lower level “project role” and “Carborough will not consider him for [more senior] positions while the prosecution is on foot”.  This has impacted him financially.  The primary judge also observed that Mr Uhr believes the ongoing prosecution has “lowered his professional standing in the eyes of his peers”.
[47]	Having identified the specific prejudice alleged by each appellant, the primary judge made several findings at [117] on matters that were common to both applications to extend time:
“1.	the applications for prerogative relief against each of Carborough, Mr Futeran and Mr Uhr are arguable;
2.	prerogative relief could reasonably have been sought as early as 21 February 2022 when the second respondent delivered reasons on the strike-out applications;
3.	it was not reasonable to expect an application to be made before that time as there was no real indication that any magistrate hearing the strike-out applications would disavow the jurisdiction of the Industrial Magistrates Court;
4.	although the applications for remedies in the nature of certiorari are only six days late, it is a relevant consideration that other prerogative relief could have been sought over eight months previously;
5.	the delays are explained by the negligence of Mr Guilfoyle and the failure of others to appreciate that prerogative relief was the most appropriate remedy;
6.	once advice was received that the appropriate remedy was prerogative in nature;
(a)	applications were promptly filed;
(b)	relatively quickly, the appeals were abandoned;
(c)	the applicant agreed to pay the respondents’ costs of the appeals on the indemnity basis.
7.	there is a significant public interest in the prosecutions proceeding as the CMSH Act promotes safety in coal mining through a scheme, including prosecution for offences;
8.	Carborough, Mr Futeran and Mr Uhr knew, within a relatively short time after the second respondent struck out the complaints, that there would be a challenge to those orders;
9.	Carborough, Mr Futeran and Mr Uhr each point to specific prejudice of the nature of commercial impact (in the case of Carborough) and employment prospects (in the cases of Mr Futeran and Mr Uhr).
10.	There is no evidence to suggest that a fair trial cannot be achieved for each of the three respondents.”
(footnotes omitted)
[48]	Under separate headings, his Honour then considered whether the extension should be granted in respect of Carborough and Mr Uhr:
“Exercise of Discretion re Carborough
[118]	In addition to the common features as I have identified them, Carborough points to prejudice arising as a result of the operation of the Carbon Credits (Carbon Farming Initiative) Rule 77 ALJR 1165 (Cth).
[119]	No determination has been made against Carborough that it is not a fit and proper person to participate in the Emissions Reductions Fund scheme. What is said is that the conviction might have that effect.
[120]	There is no suggestion that a conviction is required in order to make the Duxbury incident a relevant consideration in the determination of whether Carborough is a fit and proper person to participate in the scheme. There is no conviction at this point and the Commonwealth are making inquiries. A failure to grant prerogative relief to the applicant is not a vindication of Carborough’s position; neither is an acquittal. An acquittal just recognises a reasonable doubt as to guilt.
[121]	As already observed, there is no evidence that Carborough’s funding arrangements are in particular peril. The prejudice is much vaguer as it is said that the continuing prosecution heightens the financier’s perceptions of financial and commercial risk.
[122]	Even more vague is the prejudice said to be caused to any potential sale of shares in Carborough. There is no particular sale in jeopardy, just a suggestion that the ongoing prosecution might affect the value and saleability of the shares.
[123]	It follows, in my view, that there is no solid evidence of particular prejudice.
[124]	The applicant has an arguable case for prerogative relief which will result in Carborough being prosecuted for a breach of a regulatory statute whose objects are to promote safety in coal mining. The delay has been explained and Carborough has always known that a prosecution was being pursued.
[125]	Notwithstanding that the applicant could have pursued prerogative relief over eight months earlier than he did, I am convinced that it is proper and appropriate to grant the extension of time.
Exercise of discretion re Mr Uhr
[126]	In addition to the common features as I have identified them, Mr Uhr points to prejudice, being:
1.	financial loss in that his employer will not offer him more lucrative roles while the prosecution remains on foot; and
2.	Mr Uhr believes that the ongoing prosecution is damaging his reputation amongst his peers in his chosen profession.
[127]	There is no suggestion that Carborough intends to terminate Mr Uhr’s employment. His position then is that he is financially secure but not as well off as he would be if the prosecution was concluded in his favour. Unlike Mr Futeran and Carborough, Mr Uhr only faces prosecution over the Duxbury incident, not the Best incident.
[128]	A failure to grant prerogative relief to the applicant will effectively spell the end of the prosecution of Mr Uhr. The finalisation of the prosecution in that way is not a vindication of Mr Uhr’s position and neither is an acquittal. An acquittal just evidences a reasonable doubt as to Mr Uhr’s guilt.
[129]	The applicant has an arguable case for prerogative relief which will result in Mr Uhr being prosecuted for a breach of a regulatory statute whose objects are to promote safety in coal mining. The delay has been explained and Mr Uhr has always known that a prosecution was being pursued.
[130]	As with Carborough, the applicant’s predecessors could have pursued prerogative relief over eight months earlier than they did. That is likely to extend the period over which Mr Uhr will be unable to achieve a more senior position, either with Carborough or with some other mining company.
[131]	However, balancing all the relevant considerations as I have identified them, I am convinced that it is proper to grant the extension of time.”
[49]	In my view, on a plain reading of those reasons, it cannot reasonably be contended that the primary judge gave no consideration to whether granting the extension was fair and equitable in the circumstances.  Amongst other things, his Honour expressly considered the specific prejudice alleged by each of the appellants, the public interest in the prosecutions proceeding and being conducted fairly, and the fact that the appellants were at all times on notice that the prosecutions were being pursued.  Each of those considerations was relevant to, and informed, whether it was fair and equitable to grant the extension.  As observed at [27] above, a consideration of one principle may necessarily inform another.  In this respect, the primary judge, by “balancing all the relevant considerations as [his Honour] identified them”, correctly arrived at the conclusion in each case that it was “proper and appropriate to grant the extension of time”.
[50]	To the extent that this ground of appeal further contends that the only available conclusion was that it was not fair and equitable in the circumstances to grant the extension, the ground can only constitute an error of law if the conclusion reached was unsupported by any probative evidence.
[51]	In support, the appellants submit that his Honour should have considered several relevant circumstances which told against granting the extension.  It is unnecessary to address those circumstances other than to note that the submission is misconceived in so far as it seeks to demonstrate an error of law.  On appeals such as these, which are limited by s 554(1) of the IR Act, a consideration of the weight attributed to certain matters or whether a finding should or should not have been made is irrelevant in circumstances where there was probative evidence before the primary judge capable of supporting his Honour’s finding.  In that connection, courts have been urged to beware of attempts to use the language of “no evidence” to dress up attacks on the merits of factual conclusions as reviewable errors of law.
[52]	This was further explained by Jagot J (with whom Nicholas J agreed) in Rawson Finances Pty Ltd v Commissioner of Taxation:
“When courts refer to there being “no probative” evidence to support a finding or a finding not being “reasonably open” or “open” on the evidence (as in Bond at CLR 359-60) or it being necessary that a finding be based on “some probative material or logical grounds” and that a finding not be “completely arbitrary” … the courts are not inviting consideration of whether a finding should or should not have been made. They are considering the anterior question whether the evidence reasonably admitted the making of the finding; that is, whether the evidence could support the finding. Hence, if there is no probative evidence of a fact and no logical grounds to support the fact, the finding of that fact will involve error of law. But where there is some probative evidence of a fact and some logical ground to support the fact, the finding of that fact will not involve error of law. The formula “some probative material or logical grounds” does not convert questions of fact into questions of law.”
(emphasis added) 
[53]	On that basis, Ground 2 must fail.
[54]	Mr Uhr raises a separate, albeit related, ground of appeal which, properly understood, contends that the primary judge failed to consider a significant relevant factor of prejudice, namely that Mr Uhr’s “career is in limbo” as he is “unable to work in the areas in which he is experienced, and in his long-term vocation”.  It is submitted by counsel for Mr Uhr that the prejudice suffered in this regard goes beyond matters of mere remuneration and career progression.
[55]	This ground must fail.  As identified at [46] above, the primary judge expressly observed that Mr Uhr now occupies a lower level “project role” and “Carborough will not consider him for [more senior] positions while the prosecution is on foot”.  Particularly apposite also is his Honour’s finding at [130] of the Reasons that the delay in seeking prerogative relief would “likely extend the period over which Mr Uhr will be unable to achieve a more senior position, either with Carborough or some other mining company”.  It cannot reasonably be argued that those references to Mr Uhr’s inability to achieve a more senior position did not encompass a consideration of his career being in “limbo” in the sense described above.  There is therefore no basis to conclude from the express language of the primary judge that his Honour failed to consider the prejudice to Mr Uhr’s ability to work in his long-term vocation.
Ground 3 – Failing to determine and apply the correct period of delay in seeking prerogative relief
[56]	By s 46(2) of the JRA, the time for the first respondent to seek relief in the nature of certiorari began to run from 2 August 2022, being the date on which the second respondent made orders striking out the complaints.  Three months from that date calculates to 2 November 2022.  In circumstances where the applications for prerogative relief were filed on 8 November 2022, the primary judge correctly calculated the period of delay in seeking relief in the nature of certiorari as being six days.
[57]	By this ground of appeal, the appellants challenge that finding.  The appellants contend that the “true period of delay” was in fact 14 months, which began to run from 19 August 2021, being the date on which the strike-out applications came before Magistrate Morton for mention.
[58]	The appellants submit that as of 19 August 2021 the first respondent was on notice that the full hearing of the strike-out applications was to be heard in the Magistrates Court (as opposed to the Industrial Magistrates Court) because Magistrate Morton had made an order to that effect.  The appellants submit that it was from that point open to the first respondent to seek relief in the nature of prohibition or mandamus compelling the second respondent, who was to hear the applications on 9 December 2021, to sit as an Industrial Magistrate.
[59]	This submission is misconceived for two reasons.  First, where the relief sought is an order in the nature of certiorari, it is not to the point that there may have been a delay in seeking alternative forms of prerogative relief.  In those circumstances, the period of delay must be calculated with reference to s 46(2) of the JRA.  As no order striking out the complaints was made by the second respondent until 2 August 2022, relief in the nature of certiorari was simply not available as of 19 August 2021.
[60]	Secondly, the submission fails to appreciate that any application seeking relief in the nature of prohibition or mandamus for that purpose would have been unsuccessful.  While Magistrate Morton did make an order that the strike-out applications were to be heard in the Magistrates Court on 9 December 2021, the question of jurisdiction was expressly reserved to that occasion.  This is apparent from the exchange that is extracted at [11] above.  As the primary judge correctly observed at [61] of the Reasons:
“The only way to sensibly construe that exchange is that Magistrate Morton reserved the jurisdictional question. It could not sensibly be argued that the magistrate had refused to proceed as the Industrial Magistrates Court.”
[61]	In circumstances where the question of jurisdiction had not yet been determined, any application seeking relief in the nature of prohibition or mandamus would have been premature.  The fact that the applications were to be heard in the Magistrates Court was in no way binding on the second respondent’s decision regarding whether to sit as a Magistrate or an Industrial Magistrate.  That decision was precisely the reason for the hearing before the second respondent.  As was reiterated by Kiefel CJ and Gageler J in QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs:
“The duty, indeed the “first duty”, of any court is to be satisfied of its own jurisdiction.”
[62]	Until such time as the second respondent determined that he did not have jurisdiction to sit as an Industrial Magistrate, there was nothing for relief in the nature of prohibition to prohibit.  On this point, Dixon CJ, Williams, Webb and Fullagar JJ observed in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd:
“… while prohibition is not a writ of course, it is a writ which goes as of right when the prosecutor is directly affected by the course pursued by a tribunal to which the writ lies and the prosecutor shows satisfactorily that the tribunal is about to act to his detriment in excess of its authority. … At common law a prosecutor is expected to apply at the earliest stage at which his right to a writ arises, but he is not entitled to the remedy quia timet, that is before the tribunal is invoked or assumes a jurisdiction or authority over the matter and, where the complaint is that an order may be made in excess of power or notwithstanding that the power has not attached, the prosecutor must show a real likelihood or danger of such an order being made.”
(emphasis added)
[63]	It cannot reasonably be argued that as of 19 August 2021 there was a real likelihood or danger that the second respondent would refuse to sit as an Industrial Magistrate or was about to act in excess of his authority to the detriment of the first respondent.  As mentioned, the question of jurisdiction was yet to be determined.  Accordingly, there was no entitlement on the part of the first respondent to relief in the nature of prohibition as of that date.
[64]	Similarly, relief in the nature of mandamus could not have been sought for the purpose of commanding the second respondent to sit as an Industrial Magistrate before the second respondent had refused to do so.  It is well established that such relief will not be granted unless “there has been a refusal, actual or constructive, to exercise jurisdiction”.
[65]	It therefore cannot follow, as this ground contends, that the first respondent should have brought an application seeking prerogative relief in relation to a determination on jurisdiction prior to that determination having been made.  No error of law arises.
Ground 4 – Finding, and taking into account, that there was no evidence to suggest that a fair trial cannot be achieved for the appellants, when there was no basis upon which to make the finding
[66]	The primary judge found at [117](10) of the Reasons that “There is no evidence to suggest that a fair trial cannot be achieved for each of the three respondents.”
[67]	By Ground 4, the appellants contend that in circumstances where neither party adduced evidence as to the delay’s impact on the ability to achieve a fair trial, the finding at [117](10) was “premature and without foundation” and, therefore, constituted an error of law.
[68]	In considering whether it was fair and equitable in the circumstances to grant the extension, the primary judge properly considered whether there was any evidence of prejudice that would impact the ability to achieve a fair trial.  That was a relevant consideration in the circumstances.  As his Honour correctly observed: 
“[42]	Because these proceedings concern a criminal prosecution, there are additional considerations.
…
[45]	There is also public interest in the fair and just conduct of prosecutions. It is not necessary to descend to an examination of the types or extent of prejudice which may result, for instance, in a prosecution being stayed. The discretion to extend time otherwise limited for the bringing of applications for prerogative relief encompasses, as relevant considerations, all prejudice and general unfairness to a respondent.”
(footnotes omitted)
[69]	Despite adducing evidence of other specific prejudice caused by the delay (which is described at [45]-[46] above), the appellants did not put on any evidence regarding the inability to achieve a fair trial.  If such evidence existed, it should have been adduced when the opportunity arose.  The appellants having chosen not to do so, it was open to, and appropriate for, the primary judge to express the impugned finding in the negative.  So expressed, the finding was a factually accurate observation that went no further than to note that there was no evidence before his Honour to suggest anything to the contrary.  On this basis, Ground 4 must fail.
Disposition
[70]	The appellants have failed to demonstrate any error of law in the primary judge’s exercise of the discretion to extend time.
[71]	I propose the following orders:
In Appeal Number 414 of 2023:
1.	The appeal be dismissed.
2.	The appellant pay the first respondent’s costs of, and incidental to, the appeal.
In Appeal Number 425 of 2023:
1.	The appeal be dismissed.
2.	The appellant pay the first respondent’s costs of, and incidental to, the appeal.
[72]	BODDICE JA:  I agree with Flanagan JA.