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Starting strong: Establishing jurisdiction in work health and safety prosecutions (Part 2)

24 May 2023

4 min read

#Workplace Relations & Safety

Published by:

Jade-Ann Reeves

Starting strong: Establishing jurisdiction in work health and safety prosecutions (Part 2)

In our previous instalment, we discussed the importance of being clear about jurisdiction in work health and safety prosecutions. We explained the industrial relations system and work health and safety laws in Queensland, highlighting that the work health and safety prosecution scheme engages both the specialist industrial system and the general criminal jurisdiction.

We then looked at what can go wrong when identifying the wrong jurisdiction under this scheme in light of the Carborough Downs Coal matters.

In this next part, we continue our discussion on the litigation, emphasising the implications of making mistakes about jurisdiction and the need for careful consideration of these matters.

Extension of time applications for prerogative relief, appeals to the Court of Appeal, and more interlocutory issues

On 8 November 2022, prerogative applications were filed in the Industrial Court of Queensland (ICQ) in relation to each of the Duxbury complaints. By this point, there were three separate proceedings on foot attempting to regularise the summary proceedings, all stemming from the simple error of nominating the wrong court in the summonses for the Duxbury matters. The ICQ strike-out appeals in relation to the Duxbury incident and the District Court appeals for all matters were later discontinued.

Since the prerogative applications were filed out of time, applications for an extension of time had to be made in each case.

These extension applications were heard on 2 December 2022. On 23 December, extensions of time were given for the prerogative applications brought against two of the Duxbury defendants but not for the third.

The respondents in the two Duxbury matters where extensions of time were granted filed appeals against that decision in the Court of Appeal. This prompted another interlocutory application to stay the prerogative relief applications until the determination of the Court of Appeal appeals.

On 17 February 2023, the ICQ ordered that the Best appeals and prerogative relief applications be set down and determined, notwithstanding the pending appeals to the Court of Appeal.

The appeals to the Court of Appeal were heard on 11 May 2023, and the judgement is currently reserved.

Costs application

After successfully resisting the application for an extension of time, the third Duxbury defendant applied for costs against the Work Health and Safety Prosecutor (WHSP).

The WHSP was ordered to pay the Duxbury defendant’s costs of the application for an extension of time on an indemnity basis.

Prerogative relief applications and Best appeals

The prerogative relief applications and the Best appeals were heard on 5 April 2023.

Justice Davis delivered judgment on 9 May 2023.

His Honour found that each complaint validly engaged the jurisdiction of the Industrial Magistrates Court.

In determining whether the summons in each of the Duxbury matters enlivened the jurisdiction of the Industrial Magistrates Court, his Honour noted:

“…while the error in the preparation of the summons has caused untold problems in the prosecution of the Duxbury defendants, I hold that the summons in each case validly compelled each Duxbury defendant to appear and answer the charge on the complaint.”

This conclusion was reached because:

  1. by force of the Industrial Relations Act (IR Act), every magistrate also holds office as an Industrial Magistrate
  2. the summons in each case required the defendant’s appearance at “the Magistrates Court” at a particular address
  3. therefore, the summons required the appearance of the defendants at a place where there were judicial officers with jurisdiction to hear and determine the complaints.

His Honour also held that the magistrate, having before him a valid complaint, ought to have exercised the jurisdiction that was enlivened; that of the Industrial Magistrates Court.

In each case, his Honour ordered that the complaint be remitted to the Industrial Magistrates Court to be heard and determined according to law.  


The Carborough Downs Coal matters highlight the web of litigation in which parties can be entangled when jurisdiction is confused. His Honour described the proceedings as “a calamitous process.”

His Honour also noted that whether or not the magistrate was correct in dismissing the matters at first instance, the fact remains that the proceedings which followed the magistrate’s order trace back to an error by the prosecutor, which led to the defendants being ostensibly summonsed to a court that had no jurisdiction to hear the complaints. What followed were misconceived appeals.

All parties in proceedings should be alive to the complexities of jurisdiction, particularly in the context of work health and safety prosecutions. It is well established that criminal proceedings should not be unduly delayed.

It is important to be clear about the court and the entire system in which a proceeding operates. The nature of the appeal and the appropriate relief depends on identifying the appropriate jurisdiction.

Avoid having multiple and ongoing legal proceedings on foot, by getting off on the right one.

If you have any questions about this article, please get in touch with a member of our team below.

The information in this article is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.

Published by:

Jade-Ann Reeves

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