Justices Complaint: alternative charges

Thiess Pty Ltd v Industrial Magistrate Elizabeth Hall & Ors [2013] QSC 130


JUDGE: Boddice J
ORDER: The application is dismissed. I shall hear the parties as to the form of orders, and as to costs.
CATCHWORDS: MAGISTRATES – GENERALLY – POWERS AND DUTIES – IMPLIED OR INHERENT POWERS – where the third respondent made a complaint alleging the applicant breached obligations imposed by the Workplace Health and Safety Act 1995 (Qld) – where the complaint and summons contained alternative charges – where the applicant contended the complaint failed to comply with the requirement of s 43 of the Justices Act 1886 (Qld) and sought orders requiring the third respondent elect one of the offences – where the Industrial Magistrate dismissed the application but held the two alleged offences were not true alternatives – where the third respondent was granted leave to delete the words ―in the alternative‖ – where the applicant appealed that decision to the Industrial Court – where the appeal was dismissed finding the words ―in the alternative‖ had no legal effect – where the applicant sought judicial review of that decision – where it was held that s 43 does not authorise two matters of complaint to be pleaded in the alternative – where the applicant made application to the Industrial Magistrates Court for the amended complaint to be struck out – where the first respondent dismissed the application but held the prosecution would be called upon to elect one charge on which to proceed – where on appeal the second respondent held that although s 43(3)(a) and s 43(4) did not apply, the Industrial Magistrates Court had an implied power to strike out the charge on which the complainant elected not to proceed –  where the applicant contends s 43 and 48 contain specific powers in relation to election and amendment – where the applicant contends an implied power of election or amendment would be inconsistent with the specific provisions of the Act – where the applicant seeks orders in the nature of prohibition and/or certiorari and declaratory relief in respect of the orders made by the first and second respondents – whether an amendment of the complaint was authorised by s 43 – whether the Industrial Magistrates Court has the express or implied power to cure any defect in the amended complaint. 


David Cormack – Brisbane Barrister




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