The Queensland Court of Appeal has recently considered the guidelines for judicial review of a decision of the Department to reject a proposal for enforceable undertaking in QUBE Ports Pty Ltd v. Chief Executive Department of Justice and Attorney General and Anor (2012) QCA 285 (available here).

The application had been rejected by the Department having regard to a wide range of indicia provided under the Act including the level of injury to the relevant employee and the applicant’s record. The Applicant sought judicial review regarding the Department’s failure to afford natural justice by allowing the applicant the opportunity to make submissions in respect of two previous workplace fatalities involving the applicant; one of which had occurred in Victoria. The Court of Appeal overturned the decision of the judge at first instance on grounds that the decision was not one suitable for judicial review and referred the application back to the Department for reconsideration noting that the injury in this instance had been in the moderate range (two (2) broken arms and a head injury from a 1.5m fall).

The court considered that the decision had been appropriate for judicial review because it was not simply a decision to commence or continue a prosecution. The Act requires the Chief Executive to bring an end to a proceeding for a contravention if an enforceable undertaking is accepted. The court also observed that the decision to accept an undertaking has immediate legal consequences for the party who offers it, in that the party becomes subject to a legal obligation to perform the undertaking a contravention of which is visited with a range of legal sanctions including criminal sanction.

Although no mention of it was made in the judgment, it is our understanding that the Department generally requires undertakings significantly greater in cost to the applicant than any fine likely to be imposed if the prosecution proceeds. Although the applicant avoids a conviction under the Act, it is susceptible to re-prosecution for the original defence if the undertaking is breached. These are all important considerations for companies and directors being prosecuted and their insurers.