George v Rockett and Another

Judgment 1On 24 May 2012, Essential Energy (the applicant) sought an external review of an Improvement Notice issued under s 229(1)(a) of the Work Health and Safety Act 2011 (NSW) (WHS Act); or, in the alternative, an external review of the decision made by the Internal Review Officer, Victor Larobina (Mr Larobina) under s 229(1)(b) of the WHS Act. 2The terms upon which the applicant seeks external review are set out in the application, the relevant parts of which are extracted below:

1. That the requirement to comply with the Improvement Notice be stayed in accordance with section 229(3) of the Act pending the outcome of the external review application.
2. An order revoking the Improvement Notice.
3. Further and in the alternative, an order revoking the Respondent's decision to confirm the issuing of the Improvement Notice. 3These reasons deal only with the preliminary matter, that is, whether the requirement to comply with the Improvement Notice should be stayed under s 229(3). In oral submissions, the applicant informed the Court that it placed sole reliance on s 229(1)(b) for the purposes of the stay application. Section 229 of the WHS Act provides, relevantly: Application for external review 229(1) An eligible person may apply to the Industrial Relations Commission for review (an external review) of: ... (b) a decision made, or taken to have been made, on an internal review. ... (3) The Industrial Relations Commission may stay the operation of a decision that is the subject of an external review pending a decision on the review. (4) The Industrial Relations Commission may, on an external review, confirm, vary or revoke the decision concerned. 4In order to place these matters in context it is necessary to set out the factual background which gave rise to the application. This has been helpfully set out in the parties' respective submissions. 5On 17 April 2012, Inspector Robert Johnson, an inspector appointed under the WHS Act, issued an Improvement Notice to the applicant requiring it to, "ensure that electrical work undertaken under an access permit has been assessed by all parties and all possible live areas adjacent to the area covered by the access permit have been identified and brought to the attention of all concerned". The Improvement Notice recorded Inspector Johnson's reasonable belief that, "on 11/04/2012 ... you have contravened a provision in circumstances that make it likely that the contravention will continue to be repeated of the Work Health and Safety Act 2011, section 19". The Improvement Notice also set out a brief description of the manner in which s 19 of the Act, "is being or has been contravened", namely: Employees/Persons may be exposed to risk to their health and safety from electric shock, electrocution from being able to access installations containing live electrical components, eg, live lines, apparatus or other equipment being present in an area assumed to be accessible under an issued access permit. 6The Improvement Notice also required "the contravention" to be remedied before 11 May 2012. 7The relevant provision of the WHS Act which governed the issue of the Improvement Notice is s 191(1) which provides: Issue of Improvement Notice 191(1) This section applies if an inspector reasonably believes that a person: (a) is contravening a provision of this Act, or (b) has contravened a provision in circumstances that make it likely that the contravention will continue to be repeated. (2) The inspector may issue an improvement notice requiring the person to: (a) remedy the contravention, or (b) prevent a likely contravention from occurring, or (c) remedy the things or operations causing the contravention or likely contravention. 8On 1 May 2012, the applicant applied for an internal review of the Improvement Notice issued under s 224 of the WHS Act. That section provides: 224(1) An eligible person in relation to a reviewable decision, other than a decision made by the regulator or a delegate of the regulator, may apply to the regulator for review (an internal review) of the decision within: (a) the prescribed time after the day on which the decision first came to the eligible person's notice, or (b) such longer period as the regulator allows. (2) The application must be made in the manner and form required by the regulator. (3) For the purposes of this section, the prescribed time is: (a) in the case of a decision to issue an improvement notice the period specified in the notice of compliance with the notice or 14 days, whichever is the lesser, and (b) in any other case, 14 days. 9For present purposes, the "regulator", as defined under s 4 of the WHS Act, is the "WorkCover Authority constituted under the Workplace Injury Management and Workers Compensation Act 1998". 10Under s 223(1) of the WHS Act, a "reviewable decision" is one made under s 191 of that Act; and, an "eligible person" (in relation to the reviewable decision) includes, "The person to whom the notice is issued". 11In accordance with s 228(1) of the WHS Act, the application for an internal review (under s 224) made on 1 May 2012 operated as a stay of the reviewable decision (that is, the decision under s 191 to issue the Improvement Notice). Section 228, relevantly, provides: Stays of reviewable decisions 228(1) An application for an internal review of a reviewable decision (other than a decision to issue a prohibition notice or a non-disturbance notice) stays the operation of the decision. ... (3) The reviewer may make the decision to stay the operation of a decision on the reviewer's own initiative or on the application of the applicant for review. (4) The reviewer must make a decision on an application for a stay within one working day after the reviewer receives the application. (5) If the reviewer has not made a decision to stay a decision within the time set out in subsection (4), the reviewer is taken to have made a decision to grant a stay. (6) A stay of the operation of a decision pending a decision on an internal review continues until whichever of the following is the earlier: (a) the end of the prescribed period for applying for an external review of the decision made on the internal review, (b) an application for external review is made. 12What prompted the issue of the Notice was an incident on 11 April 2012 involving Matthew Sweeney, a 20 year old apprentice electrician in the employ of Ronin Pty Limited t/as Sean Hoffman - Electrical Service Provider (Ronin). Mr Sweeney suffered an electric shock after ascending a power pole designated "pole 0627149" (pole 149) and grasping two live low voltage wires attached to the pole. 13Pole 149 was located on the corner of Glengarvin Drive and Higgins Lane, Oxley Vale. Also attached to pole 149 were two high voltage wires and another two low voltage wires. At the time of the incident, these two sets of wires had been isolated by the applicant. 14According to an affidavit of Mark Andrew Mulligan, sworn on 24 May 2012, the applicant is one of three NSW Distribution Network Service Providers required to allow Accredited Service Providers access to its network in order to complete "contestable works". Contestable works include customer connections and increasing the capacity of the distribution network. The applicant provided access to its network in order to allow work to be performed. 15Ronin, at the time of the incident, was an accredited service provider, Level 1 (ASP 1). Ronin was engaged by Hibbard Pty Ltd to complete works on the applicant's network on the corner of Glengarvin Drive and Higgins Lane. On 19 March 2012, Ronin requested that the applicant provide it with access to the network in order to install a cable pole mid-span through de-energised low voltage and high voltage wires. On 11 April 2012, Ronin received an Access Permit and a Low Voltage Authority to Work from the applicant. Both documents were issued by the applicant to Ronin to enable Ronin to erect ("stand") the new power pole between pole 149 and a second power pole, designated 0627 150 (pole 150). 16The effect of both documents was to notify Ronin, consistent with its request, that the high voltage lines (the subject of the Access Permit) and the low voltage lines (the subject of the Low Voltage Authority to Work), running between poles 149 and 150 ("the work area") had been isolated. According to the applicant, a further set of low voltage lines attached to pole 149 and terminating there were not isolated because those lines did not run through the work area. Moreover, pole 149, according to the information received from Ronin, did not form part of the work area. This further set of low voltage lines were the lines grasped by Mr Sweeney when he ascended pole 149.