The applicant by the very nature of the nature of the Act (see ss.20(2), 21 and 59 in particular) is required to state with particularity why failed headlights and a broken windscreen on a train are unsafe and the nature of the risk that is involved. The applicant has failed to abide by this requirement. I accept what Mr Palmer has submitted in this regard. That is, there must be a risk to health and safety of employees and reasonable practical control measures that would reduce the risk should have been but were not taken. The applicant did not or did not properly particularise these matters in a way that could be understood.
I agree with Mr Palmer that it is incumbent upon the applicant to articulate his case. It is quite conceivable that on the articulation of the applicant's case, a number of the defects to which Mr Palmer referred may be cured. If those defects are not cured by the applicant providing particulars in his application to review, the respondent should have leave to remake the applications pursuant to s.75 of the Victorian Civil and Administrative Tribunal Act 1998.
This is a very different situation from the Worldwide Enterprises case where the applicants had already been given an opportunity to articulate their case and had been assisted by the member who gave directions in how that case should be articulated. However, the applicant failed to follow those directions. This is not the situation here. The applicant should be given the opportunity to give full particulars of its allegations. Ms Doyle suggested that I should give leave for the applicant to be able to particularise particular 8 which I have referred to in these reasons. However in my view, while particular 8 certainly does need proper particulars, there should be a general leave to give further and better particulars of each of the matters referred to in the notice of review. When those particulars are given, the Tribunal may then be in a position to determine whether the applicant's case would necessarily fail. In my view it would be completely unjust to dismiss the application at this stage without giving the applicant the opportunity to reparticularise his claim. Those particulars should be given before discovery.
Without the particulars, it is impossible for the respondent to determine what documents would be relevant or otherwise to the proceeding.
I agree with Ms Doyle that it quite conceivable that there could be conflicting evidence as to whether or not the joined party's TOS is sufficient to cover the matters complained of in PINs 1 and 3 and the notice of application for review herein. However the applicant should provide particulars as to why the TOS is not sufficient to provide for the health and safety of the DWG in relation to the matters complained about in PINs 1 and 2.
[2]
As to s.75 application thus in relation to PIN 2, in my view for the reasons I have stated the application must fail and therefore it should be struck out. In relation to PINs 1 and 3 the respondent has not convinced me at this stage that the application must fail. I do not believe it would be fair to dismiss the application at this point in relation to PINs 1 and 3. Therefore I will order the applicant to particularise its application. However after the particulars have been provided it may be appropriate for the respondent to remake its application pursuant to s.75 of the Victorian Civil and Administrative Tribunal Act 1998 in relation to PINs 1 and 2.
[3]
In relation to PIN 2 the respondent requested that the review be struck out. I therefore abided by that request rather than dismissing the application for review.
It is noted orders 1 and 2 that I have made herein were made after submissions were made at the conclusion of the hearing pursuant to s.75 of the Victorian Civil and Administrative Tribunal Act 1998. I gave oral reasons at the time in relation to orders 1 and 2.
Parties
Applicant/Plaintiff:
Chysostomou
Respondent/Defendant:
Victorian Workcover Authority
Legislation Cited (3)
Civil and Administrative Tribunal Act 1998
Health and Safety Act 2004
Opportunity Act 1984
Cases Cited (6)
Chysostomou v Victorian Workcover Authority (Review and Regulation) [2014] VCAT 176 (20 February 2014)
PIN 3 and PINEON V01020700555L/63-03: The third PIN alleged a contravention of s 21 of the OHS Act "by allowing the operation of metropolitan suburban trains with cracked or smashed Driver windscreens for a period of up to 22 hours on the Driver's side or for an indefinite period of time if the windscreen is smashed or cracked on the off side of the windscreen". The suggested compliance measure was "to remove affected trains from serve with cracked or smashed Driver's windscreen".
The decision of the respondent's inspector to cancel the provisional improvement notices was internally reviewed on 17 June 2013 which review upheld the inspector's decision to cancel the PINs:
(a) in relation to the first and third (s.21 headlight and windscreen) PINs, internal review found that the respondent's procedures adequately controlled any risk;
(b) in relation to the second PIN, (s.23 headlight PINs) the internal review agreed that a health and safety representative did not have power to issue a PIN in reliance on this section of the Act.
In paragraphs 7, 8, 9, 10 and 11 of the applicant's submissions made by Ms Doyle SC and Ms Forsyth, Counsel for the applicant, the principles that apply to dismissal pursuant to s.75 are correctly stated. It is there stated as follows:
It appears that the Respondent seeks an order for summary dismissal, rather than that the proceeding be struck out. Such an order, if it were made, would bring the proceeding to an end without any possibility of reinstatement. The test to be applied in determining an application for summary dismissal presents a high threshold for the Tribunal. It is set out in the High Court's decision in Fancourt v Mercantile Credits Pty Ltd[1983] HCA 25; (1983) 154 CLR 87 (Fancourt):
"The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried: see Clarke v Union Bank of Australia Ltd[1917] HCA 19; (1917) 23 CLR 5; Jones v Stone [1984] AS 122; Jacobs v Booth's Distillery Co(1901) 85 LT 262.
In Towie v Victoria[2008] VSC 177, Kyrou J refers to Fancourt in summarising the authorities relevant to s 75 of the VCAT Act: