INDUSTRIAL COURT OF QUEENSLAND

CITATION:	Nicholson v Carborough Downs Coal Management Pty Ltd & Ors (No 3) [2023] ICQ 004	
PARTIES:	SIMON NICHOLSON (WORK HEALTH AND SAFETY PROSECUTOR)
(appellant)
v
CARBOROUGH DOWNS COAL MANAGEMENT 
PTY LTD
(respondent)
SIMON NICHOLSON (WORK HEALTH AND SAFETY PROSECUTOR)
(applicant)
v
CARBOROUGH DOWNS COAL MANAGEMENT 
PTY LTD
(respondent)
SIMON NICHOLSON (WORK HEALTH AND SAFETY PROSECUTOR)
(applicant)
v
RUSSELL CLIVE UHR
(respondent)
SIMON NICHOLSON (WORK HEALTH AND SAFETY PROSECUTOR)
(appellant)
v
JEREMY DAVID FUTERAN 
(respondent)
SIMON NICHOLSON (WORK HEALTH AND SAFETY PROSECUTOR)
(appellant)
v
BERNARD VANDEVENTER
(respondent)
SIMON NICHOLSON (WORK HEALTH AND SAFETY PROSECUTOR)
(appellant)
v
KEVIN JAMES CASEY
(respondent)
SIMON NICHOLSON (WORK HEALTH AND SAFETY PROSECUTOR)
(appellant)
v
GARY ROY JONES
(respondent)	
FILE NO/S:	C/2022/16, C/2022/17, C/2022/18, C/2022/20, C/2022/21, C/2022/22, C/2022/23	
PROCEEDING:	Applications	
DELIVERED ON:	Orders made on 17 February 2023; reasons delivered on 
23 March 2023	
HEARING DATE:	17 February 2023	
MEMBER:	Davis J, President	
ORDERS:	1.		That the appeals and applications will be set down on a date to be fixed.
2.	Costs reserved.	
CATCHWORDS:	CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CASE MANAGEMENT – ELIMINATION OF DELAY – where eight complaints were sworn alleging offences against the Coal Mining Safety and Health Act 1999 – where three complaints were accompanied by summonses requiring the defendants to appear at the Magistrates Court – where the summonses should have required the attendance of those defendants at the Industrial Magistrates Court – where a magistrate struck out all eight complaints – where the prosecutor appealed –  where some appeals were abandoned – where applications for prerogative relief were filed out of time – where extensions of time were granted – where appeals were lodged to the Court of Appeal against the orders extending time – where no orders staying operation of the extensions of time had been sought or made – whether the appeals and applications ought not be heard pending the appeals to the Court of Appeal
Coal Mining Safety and Health Act 1999, s 255 
Judicial Review Act 1991, s 46
Work Health and Safety Act 2011	
CASES:	Du Preez v Chelden [2020] ICQ 008, cited
Gore v Carborough Downs Coal Management Pty Ltd & Ors [2022] ICQ 031, related
Nicholson v Carborough Downs Coal Management Pty Ltd & Ors [2022] ICQ 34, related
Yates v Wilson (1989) 168 CLR 338, followed	
COUNSEL:	B J Power KC for the appellant in all appeals and the applicant in all applications 
J A Bremhorst for the respondents in appeal number C/2022/16, and application numbers C/2022/17 and C/2022/18
P J Roney KC for the respondent in appeal number C/2022/20
S Dekker for the respondent in appeal number C/2022/21
K McAuliffe-Lake for the respondent in appeal number C/2022/22 
No appearance for the respondent in appeal number C/2022/23	
SOLICITORS:	Workplace Health and Safety Prosecutor for the appellant in all appeals and applications
McCullough Robertson for the respondents in appeal number C/2022/16 and application numbers C/2022/17 and C/2022/18
Australian Business Lawyers & Advisors for the respondents in appeal number C/2022/20
Mills Oakley for the respondent in appeal number C/2022/21
Ashurst for the respondent in appeal number C/2022/22
No appearance for the respondent in appeal number C/2022/23	

[1]	
[1]	A question arose as to whether various applications and appeals ought to be set down for hearing while appeals to the Court of Appeal, which may ultimately affect the outcome, are pending.
[2]	On 17 February 2023, I made orders and reserved reasons:
1.	that the appeals and applications will be set down on a date to be fixed; and 
2.	costs reserved.
[3]	The appeals and applications have since been set down for hearing on 5 and 6 April 2023.
Background
[4]	On 7 September 2019, at the Carborough Downs Coal Mine (the mine), there was an accident which injured a mine worker, Cameron Best (the Best incident).  On 25 November 2019, at the mine, there was another accident.  This accident killed a mine electrician, Bradley James Duxbury (the Duxbury incident).  
[5]	In November 2020, complaints were sworn by Aaron Guilfoyle, the Work Health and Safety Prosecutor appointed under the Work Health and Safety Act 2011 (the prosecutor).  Summonses were issued against three of the current respondents alleging offences against the Coal Mining Safety and Health Act 1999 (CMSH Act) arising from the Duxbury incident (the Duxbury charges, and the defendants to those charges being the Duxbury defendants).
[6]	The summons issued in each of the Duxbury charges required the Duxbury defendants to appear before a nominated Magistrates Court.  That was an error.  Each summons should have required the attendance of the defendants at the Industrial Magistrates Court (the wrong court point).
[7]	In January 2021, complaints were sworn by Mr Guilfoyle and summonses issued against five of the current respondents alleging offences against the CMSH Act arising from the Best incident (the Best charges and the defendants to those charges are the Best defendants).
[8]	In each of the Duxbury charges and in each of the Best charges:
1.	the complaint did not state on its face the Magistrates Court district in which the offence occurred; and
2.	the complaint did not make express reference to s 255 of the CMSH Act which vests jurisdiction in the Industrial Magistrates Court; and
3.	the complaint did not make express reference to the Industrial Magistrates Court (all three being the formal defects points).
[9]	Applications were subsequently made by the defendants in all eight cases to strike out the complaints.  The Best defendants succeeded on the formal defects points.  The Duxbury defendants succeeded on both the formal defects points and the wrong court point.  The orders in the Best charges were made in the Industrial Magistrates Court.  The orders in the Duxbury charges were made in the Magistrates Court.
[10]	Assuming that the prosecutor is a “person aggrieved” by the orders striking out the Best charges, the prosecutor has a right of appeal to this Court.  The five appeals in relation to the Best charges were lodged on 22 August 2022.
[11]	As to the Duxbury charges, the prosecutor filed appeals against all three Duxbury defendants to this Court and also filed appeals to the District Court.  The rationale was, apparently, that there was confusion as to whether an appeal would lie to the District Court because the orders had been made by the Magistrates Court, or to this Court, on the basis that any orders should have been made in the Industrial Magistrates Court.  Whether it was appropriate for the prosecutor to have different appeals being prosecuted in different courts at the one time is a matter of considerable doubt.
[12]	Applications were brought by each of the Duxbury defendants to strike out the appeals to this Court.  On 28 October 2022, I made the following orders:
“1.	The applications to strike out appeal numbers C/2022/17, C/2022/18 and C/2022/19 are dismissed. 
2.	Appeals C/2022/16, C/2022/17, C/2022/18, C/2022/19, C/2022/20, C/2022/21, C/2022/22 and C/2022/23 shall be heard together. 
3.	The appeals are set down for hearing on 2 December 2022. 
4.	All parties have liberty to apply. 
5.	Each parties’ costs are reserved. 
6. 	All parties have liberty to file and serve further supplementary submissions by 4:00 pm on 25 November 2022.”
[13]	On 8 November 2022, the prosecutor filed in this Court applications against the magistrate who struck out each of the Duxbury charges seeking prerogative orders quashing those decisions (the prerogative applications).  The Duxbury defendants are respondents to the prerogative applications.  Shortly thereafter, all appeals against the Duxbury defendants, in relation to charges arising from the Duxbury incident, were discontinued.
[14]	By the time the prerogative applications were filed, the time prescribed for their filing by the Judicial Review Act 1991 had expired.  Applications to extend the time were made.  Those applications were heard on 2 December 2022 and the appeals in the Best charges were adjourned to a date to be fixed.
[15]	On 23 December 2022, I gave an extension of time in respect of two of the three Best defendants (Carborough Downs Coal Management Pty Ltd and Russell Clive Uhr) and refused an extension of time in respect of the third (Jeremy David Futeran).  Carborough Downs Coal Management Pty Ltd and Mr Uhr have appealed those orders to the Court of Appeal (the Court of Appeal appeals).  The Court of Appeal appeals are to be heard on 11 May 2023.
The position as at 17 February 2023
[16]	The prerogative applications and the appeals relating to the Best incident all came before me on 17 February 2023.
[17]	The appeals in the Best charges raise the formal defects point.  It is unlikely that the Court of Appeal will touch on that point.  Except for any desirability to hear the prerogative applications with the Best appeals, there is no reason why the Best appeals cannot be heard and determined.
[18]	In the event that the Court of Appeal appeals are successful, the Court of Appeal might determine the extension of time applications itself or remit them to this Court.  If the appeals were allowed and the applications were determined in favour of the remaining Duxbury defendants then there would be no proceedings in this Court on any of the Duxbury charges.
[19]	The risk is then that if the prerogative applications are heard and determined, all that might be later nullified by the Court of Appeal setting aside the orders granting extensions of time.
[20]	If the Court of Appeal dismisses the appeals then the prerogative applications and the appeals can all be heard together in this Court.
[21]	On 17 February 2023, before this Court, the prosecutor submitted:
1.	he was ready to proceed with the appeals and the prerogative applications; but
2.	would not oppose listing the hearing after 11 May 2023.
[22]	Later during argument, the prosecutor’s position changed somewhat and he pushed to have the prerogative applications and the appeals to this Court set down and determined.
[23]	Carborough Downs Coal Management Pty Ltd and Mr Uhr sought a date for hearing of the prerogative applications at some time after 11 May 2023.
[24]	The respondents to the appeals in relation to the Best incident were not affected by the Court of Appeal appeals and they were ready to proceed with the appeals to this Court.
Consideration
[25]	It is well established that criminal proceedings should not be unduly delayed.  
[26]	It is also well established that it is undesirable to fragment the criminal process.  In Yates v Wilson, Mason CJ, delivering the judgment of the Court, observed:
“The undesirability of fragmenting the criminal process is so powerful a consideration that it requires no elaboration by us.”
[27]	Appeals from decisions on the appeals to this Court and the applications to this Court lie to the Court of Appeal.  If the appeals and the applications presently before this Court do not proceed until after the determination of the Court of Appeal appeals then it is foreseeable (depending on whether the Court of Appeal reserves its decisions and for how long) that it could be well into the second half of this year before those appeals and applications are determined.  If the appellants to the Court of Appeal appeals are unsuccessful then it will take some time to have the appeals and applications presently before this Court listed, heard and determined.  If the appeals and applications presently before this Court are successful then there is, no doubt, some prospect of appeals to the Court of Appeal from those orders.  It might be well into 2024 before the complaints are returned to the Industrial Magistrates Court if the complaints do proceed.  The Industrial Magistrates Court would then hear the complaints in relation to events which would by then have occurred over four years previously.
[28]	The more desirable course is to determine the appeals and applications in this Court and any appeals from those decisions could hopefully be considered by the Court of Appeal quickly.  That course might lead to further expense being incurred by the parties.  That consideration is outweighed by the desirability of controlling delay and avoiding the further fragmentation of what has been a calamitous process.
[29]	For those reasons I set the appeals and applications for hearing.