Gray Bruni Constructions v Victorian WorkCover Authority (Occupational and Business Regulation) [2006] VCAT 1969

1 The determination of the respondent made 6 March 2006 (IRU 06/02673) is set aside and there is substituted therefor a determination that Prohibition Notice V00020501956L/112-01 is set aside.

2 The determination of the respondent made 8 March 2006 (IRU 06/02863) is set aside and there is substituted therefor a determination that Prohibition Notice V00054001096L/112-01 is set aside.

Dr Neal, SC and Mr Rozen of Counsel, instructed by Deacons

Mr Pizer of Counsel, instructed by Ms Anne Warner, Lawyer for Victorian WorkCover Authority

1 In 2005 Mildura Rural City Council was seeking to have some major civil engineering works carried out. One element of the works was a diversion of the San Matao Avenue drain away from the site of a proposed marina. The Council awarded a contract to carry out these works to Gray Bruni Constructions Pty Ltd, accepting its tender by letter dated 24 November 200. The City and Gray Bruni executed a contract constituted by a deed and associated documents bearing date 24 November 2005.

2 Council's Project Manager for this contract was Thomas Gibcus McGrath Group Pty Ltd known as 'TGM'. A Mr Reddy performed these functions on behalf of TGM.

3 The regulation of safety on projects such as this is the responsibility of the Victorian WorkCover Authority known as 'Worksafe Victoria' in this element of its work. As part of her duties for the WorkCover Authority Inspector Susan L. Johnston attended the site of the drainage diversion work at Cureton Avenue, Mildura on 11 January 2006. Her immediate concern at that inspection was monitoring the safety of the system used to unload drain pipes at the site. She made contact with the Council and with Gray Bruni and noted that there were sub-contractors working on site. On 19 January 2006 she noted excavation for the laying of the concrete drain pipe. She said:

The pipe appeared to be laid correctly and the excavation was benched, or stepped. I cited a job safety analysis (JSA) from Gray Bruni Constructions Pty Ltd in relation to the trenching and I had no issues with that JSA.

4 Trenching work was being done by a sub-contractor - P. & K. Prost (Vic) Pty Ltd.

5 Matters continued without any untoward incidents until 13 February 2006. On that day around lunchtime Inspector Robert Jones of Worksafe was driving along Cureton Avenue when he:

Observed an excavation site on the northern side of Cureton Avenue [he] observed a hard hat protruding out from the excavation, [he] could not see any persons above ground at the excavation, except for a person who was operating an excavator.

6 He stopped his car and when he approached the trench he could see Mr Marchello De Frenza at the bottom of the trench which was approximately 3m deep. He saw another person Mr Domenico Murrone standing on top of concrete pipes which had been laid in the trench. It was Mr Murrone's hard had that he had seen from the roadway.

7 Mr Jones said that he saw a trench shield on site but that it provided no protection.

8 The significance of this observation is that a man standing in the bottom of a trench that is 3m or more deep is literally 'in over his head'. Unstable ground may collapse crushing him to death or asphyxiating him. Gray Bruni's employee handbook gives specific directions as to safety for these procedures. At page 82 the 15 September 2005 handbook states:

Gray Bruni Constructions' preferred trench support procedure is:

•

Where the easement allows bench or batter any trench over 1.5m deep.

•

Where battering is not suitable, shield shall be used. Shields shall be lowered by the excavator using approved chains at each corner. They shall sit on a bench section of the trench less than 1.5m from the bottom of the trench. They shall extend above the natural ground 0.3m, or the ground shall be battered from the top of the shield.

9 The diagram in the manual shows step battering of vertical side trenches with the bench or horizontal portion being not less than 1m wide and no vertical side to exceed 1m. It will be recalled that Inspector S. Johnston observed this procedure in operation on her visit in January. Trench shields are constituted by two large metal sheets separated by a metal framework. The purpose is to allow workers to operate in trenches between the protection of the two metal sheets which should prevent the walls of the trench from collapsing in upon themselves and the worker.

10 On 13 February Mr Jones observed no benching and according to his account whilst there was a trench shield within the trench, the workers were not within its protection. Accordingly as he saw it there was an imminent and deadly risk to the two workers in the trench, in particular the one standing at its face whose head was below ground level. Mr Jones identified himself as a Worksafe Victoria inspector and directed Murrone and De Frenza to come out of the trench. He regarded himself as exercising a power under Section 120(1) of the Occupational Health and Safety Act when he gave that direction. When they came out of the trench they identified a Mr Prostamo who was, it seems, the principal of the sub-contracting company as the person in charge of the excavation. Inspector Jones asked Mr Prostamo to dismount from the excavating machine which he had been operating and showed him his inspector's identification. He told Mr Prostamo that he was going to halt excavation works until the workers in the trench were operating within an area protected by the trench shield. He 'observed that the trench shield was too wide for the trench and could not be placed correctly in the trench to provide suitable ground support'.

11 Mr Jones' direction to cease work was being ignored. By now it was 28 minutes past one and Mr Jones telephoned Mr Searle, the Occupational Health and Safety Manager of the Council. He told Mr Searle that Gray Bruni sub-contractors 'had refused [his] requests and direction to stop work'. Mr Searle said that he would attend the site immediately. With excavation work continuing Mr Jones went to his car to obtain his camera to take photographs which he said he was authorised to do under Section 99 of the Occupational Health and Safety Act. Mr Prostamo demanded that Mr Jones cease taking photographs. According to Mr Jones, Mr Prostamo then held him in a bear hug and demanded that Mr Jones surrender his camera. Mr Jones gave up the camera in the hope of defusing the situation. Mr Prostamo according to Mr Jones extracted the film and threw it away. He operated an excavator to begin back filling the trench. It was now 1.32 and Mr Jones rang the Mildura Police. A minute later he again rang Mr Searle advising him what had happened and that Council representatives were on the way. When two constables of police arrived they asked Mr Prostamo to stop work. At about the same time Mr Allan Morffew of the Council and Mr Reddy arrived. At Mr Jones' request Mr Morffew requested Mr Prostamo to cease work which he did. Mr Reddy, it will be recalled, was Council's Project Management representative employed by TGM. Mr Jones told Mr Morffew and Mr Reddy that he was going to issue Council with a prohibition notice under Section 112 of the Occupational Health and Safety Act. He wanted to have no further dealings with Mr Prostamo and that he 'would rely on the Council to remedy the risks associated with the excavation'. By the time he left the site it was about 2.00 pm.

12 Mr Jones then took some time to compose himself after his experience and also to report to his superior at Worksafe, Mr Bull and seek guidance. He was told that the follow-up matters with Council and Mr Prostamo 'would be undertaken by inspectors from the Bendigo region'.

13 Mr Murrone made an affidavit in which he said that when Inspector Jones arrived he was within the protection of the trench shield and that the other worker in the trench was 'just outside the shield, by about one foot, that is all'.

14 Gray Bruni's site engineer for the excavation was a Mr Jiap Ramachandra. While the events involving Mr Prostamo and Inspector Jones were occurring he was at the other end of the site organising the area for the unloading of pipes. He received a telephone call from Gray Bruni's General Manager based in Melbourne informing him of the incidents between Inspector Jones and Mr Prostamo and directing him 'stop everything, stop the work, make it safe and put a fence around the job'. In accordance with this direction he had parawebbing erected around the excavation which was replaced on 14 February under his direction with cyclone wire erected by a fencing contractor.

15 After discussions with Mr Jones, Mr Ramachandra spoke to Mr Prostamo telling him to go home and not to return to the site until he was advised to do so. He told him that he did not know what Mr Prostamo's company's future on the job was and that a meeting on 14 February would determine that. Meanwhile no further work should be done.

[Prost was not represented before me. None of the parties to this proceeding sought to contradict Mr Jones' account of his dealings with Mr Prostamo.]

16 At about 5 pm Inspector Jones called at the municipal chambers in Mildura to serve the prohibition notice under Section 112 of the Occupational Health and Safety Act 2004 which he had foreshadowed. This notice prohibited the laying of stormwater pipes in Cureton Avenue, Mildura. It said that 'the laying of pipes with an internal diameter of 1.5m and an exaction that is approximately 3m deep without suitable ground support involved an immediate risk to health and safety'. The reasons for the notice were as follows:

I believe the activity involves an immediate risk to the health and safety of persons because suitable systems of work are not in place to provide a safe system of work.

17 The notice was directed to Mildura Rural City Council and expressed to have been given to Mr Allan Morffew. Mr Morffew is Council's Asset Development Manager. Section 112 of the Act authorises an inspector to issue a prohibition notice on the basis of two alternative beliefs that:

(a) An activity is occurring at a work place that involved or will involve an immediate risk to the health or safety of a person;

(b) An activity may occur at a work place that, if it occurs, will involve an immediate risk to the health or safety of a person -

18 The form of the notice refers to an activity 'which involves an immediate risk to health and safety' indicating that the notice is issued on the basis of the first of the two stipulated beliefs. In his evidence before me Inspector Jones said that the notice should have been issued on the basis of the belief set out in paragraph (b), namely that the relevant activity 'may occur ... that, if it occurs, will involve an immediate risk to the health or safety of a person'. His evidence on this point was perhaps a little equivocal. The suggested relevance of the second state of belief appears to derive from the fact that by 5.00 pm work on site had ceased and there was no immediate threat that it would resume.

19 Following the report to the Melbourne headquarters of the Commission by Mr Jones, Inspector De Graves was sent to Mildura. He arrived on 14 February, the following day. On the way to a meeting at the Council's Municipal Chambers he drove past the construction site, noting that no work was in progress but that there were two excavators and a trenching shield on site. The meeting at the municipal chambers in addition to Inspector De Graves, included Inspectors Noonan, Sullivan and Jones of the Authority; Mr Reiffel, Mr Putton and Mr Jeffrey and Mr Ramachandra of Gray Bruni, Mr Morffew and Mr Healey of the Council and Mr Reddy of TGM. There are pending proceedings relative to Mr Prostamo and his company. Inspector Noonan was tasked with investigating these matters and dealing with them. Inspector De Graves had the responsibility of following up the matters commenced by Inspector Jones. At the meeting no one attempted to justify what had occurred. None of the persons representing organisations other than WorkSafe denied Mr Jones' allegations. Mr Reiffel, a spokesman for Gray Bruni, according to Inspector De Graves:

Expressed dismay at the actions of their sub-contractor [and said] that he would take action against Prost, namely by cancelling the contract for the drainage and trenching works.

20 On 15 February Inspector De Graves met Mr Prostamo on site. According to Mr De Graves, Mr Prostamo was regretful of what he had done the previous day and hoped that he could apologise, 'shake hands' with Inspector Jones and have his company reinstated to its sub-contract. Inspector De Graves served Mr Prostamo with a prohibition notice addressed to P. & F. Prost (Vic) P/L which prohibited 'any further trenching work/activity'. The notice recorded:

From my enquiries I have formed the opinion that there is no safe system of works at the trenching works and further that it could collapse resulting in a list of injuries to employees/person(s).

21 Next, Inspector De Graves telephoned Mr Reiffel. He told him that even although Gray Bruni had instructed works to cease 'their lacked a safe system of works at the site'. He then arranged to meet Site Engineer, Mr Ramachandra on site, informing him by telephone that he was concerned to view safety documentation.

22 Mr Ramachandra said that his interview with Inspector de Graves took place partly at the rear of Inspector De Graves motor vehicle and partly in the site shed. He said he showed the site handbook to the Inspector who flipped through it briefly, taking less than a minute. Inspector De Graves says that the interview took place entirely at the rear of his motor vehicle and that he did not enter the site shed at all. He specifically denied having viewed any documentation on site. In a supplementary statement of evidence he said 'in any event, despite my request, I was not provided with any paper work before I issued the Gray Bruni prohibition notice'. I will return to this matter presently. The Inspector gave Mr Ramachandra a Code of Practice entitled 'Safety Precautions in Trenching Operations'. He was of the opinion that Mr Ramachandra was inexperienced and little acquainted with proper safety precautions. The prohibition notice which he issued on its face, like the notice issued to the Council by Inspector Brown on 13 February, appears to be issued on the basis of the first of the two sets of beliefs laid down in Section 112(1) of the statute. In his evidence before me the Inspector said that paragraph (b) of Section 112(1) was the more appropriate and true belief on the basis of which the notice was issued. The reasons for the notice were stated to be:

I believe the activity involves an immediate risk to the health and safety of persons because the trench may collapse without warning trapping/engulfing employees/person(s) and cause sever [sic] injuries/death.

Allowing any person to enter or work within the immediate vicinity of the trenching/excavation located on Cureton Avenue, Mildura without a suitable ground support system (correctly maintained) in place.

Any further trenching work/activity where a person(s) enter a trench/excavation that is greater than 1.5m in depth with the above employer suppling and/or maintain an appropriate system of work.

25 Inspector De Graves said that had he not been shown any documentation he would have taken copies and recorded that the documents had been shown to him in the 'entry report' which he left with Mr Ramachandra.

26 In my view it is ultimately not significant whether the recollection of Inspector De Graves or that of Mr Ramachandra on this point is the correct one. The supplementary statement by the Inspector quoted above might imply that Mr Ramachandra had simply failed to comply with the Inspector's requests to produce documentation as to safety procedures. In fact as the Inspector confirmed in his viva voce evidence, whilst he foreshadowed a desire to view safety documentation in fact on his recollection he did not follow this matter up. It was not that he asked for documents and was refused access to them. He also said that he had already determined that a prohibition notice would issue. Therefore, what he was told or not told, or shown or not shown at this site visit played no part in his decision to issue the notice. Mr De Graves entry report is on a standard form which includes a large quantity of standard text and a recital of the events that had occurred prior to his site visit. The account of the site visit is quite short and by no means expansive. Given that the entry report records him as being on site for an hour it certainly on no view purports to be an exhaustive blow by blow account of what occurred. Given that Inspector De Graves was really at this point attaching no significance to safety documentation it is perhaps equally possible that he did not even bother to ask for it or that he asked for it and looked at it only in a very perfunctory fashion. His concern as he explained to me was not that there was no safe system of work 'on paper' but rather that the events of 13 February showed that it had not been implemented in fact.

27 On 6 March Inspector De Graves met Mr Prostamo at the WorkSafe offices at 628 Bourke Street, Melbourne. He handed him 10 copies of the Code of Practice which he had given to Mr Ramachandra. Then by arrangement on 8 March he attended a work site where Mr Prostamo's company was carrying out trenching operations. The Inspector viewed the system which was being employed. Being satisfied with that system which entailed the use of benching and battering he gave Mr Prostamo notice that he regarded the risk identified in the prohibition notice served on his company as rectified. On 14 April he met Mr Reiffel of Gray Bruni on another site under Gray Bruni's control and based on his observations and consultations he gave notice to Gray Bruni that the risk identified in its prohibition notice had been remedied. Mr Jones provided a similar notice to Mr Morffew of the Council on 13 April 2006.

28 Section 128 of the Occupational Health and Safety Act 2004 gives a person to whom a prohibition notice has been issued a right to seek an internal review of the determination to issue the notice. The Authority is then empowered to affirm or vary the reviewable decision or else set it aside and substitute another decision considered appropriate. Section 129 of the Act provides a further right to seek review from this Tribunal. By letter dated 27 February 2006 solicitors acting for the Council sought internal review of Inspector Jones' decision to issue the notice addressed to the Council. A similar letter seeking review dated 1 March 2006 was despatched by solicitors acting for Gray Bruni Constructions seeking a review of Inspector De Graves determination to issue a notice addressed to Gray Bruni. Mr Peter Murphy, the Authority's Senior Internal Review Officer affirmed the determinations of both Inspectors, on 6 March in the case of the Council and on 8 March in the case of Gray Bruni. Council filed a review application dated 20 March 2006 initiating proceeding B21/2006 and solicitors acting for Gray Bruni filed an application on 22 March initiating proceeding B24/2006.

29 Senior Member Davis directed that the proceedings be heard concurrently and they came on for hearing before me on 16 August 2006.

30 These proceedings are brought in the Tribunal's review jurisdiction. That jurisdiction is modelled upon the merits review jurisdiction created for the Commonwealth Administrative Appeals Tribunal by the Administrative Appeals Tribunal Act 1975. That Tribunal's counterpart in the Victorian Governmental and legal system was the Administrative Appeals Tribunal of Victoria established under the Administrative Appeals Tribunal Act 1984. The functions of that Tribunal were incorporated in this Tribunal by the Victorian Civil and Administrative Tribunal Act 1998, Division 3 of Part 3.

31 In exercising this merits review jurisdiction the Tribunal reaches its own decision on the merits of the matter before it rather than reviewing the propriety or legality of the decision made by the initial decision-maker. A question for the Tribunal is not whether the decision under review was 'open' to the initial decision-maker as a matter of fact or law but rather what the correct decision upon the material before the Tribunal is. In the famous case of Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, these principles were laid down by a Full Court of the Federal Court consisting of Bowen CJ, Smithers and Deane JJ. In a joint judgment Bowen CJ and Deane J said:

The function of the Tribunal is, as we have said, an administrative one. It is to review the administrative decision that is under attack before it. In that review, the Tribunal is not restricted to consideration of the questions which are relevant to a judicial determination of whether a discretionary power allowed by a statute has been validly exercised. Except in a case where only one decision can lawfully be made, it is not ordinarily part of the function of a Court either to determine what decision should be made in the exercise of the administrative discretion in a given case or, where a decision has been lawfully made in pursuance of a permissible policy, to adjudicate upon the merits of the decision or the propriety of the policy. That is primarily an administrative rather than a judicial function. It is the function which has been entrusted to the Tribunal.

The question for the determination of the Tribunal is not whether the decision which the decision-maker was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision is the correct or preferable one on the material before the Tribunal.

(1979) 24 ALR 577, 589

32 It is a commonplace of the Tribunal's review jurisdiction that its duty is to reach the 'correct or preferable' decision on the material before it. Dr Neal, SC and Mr Rozen who appeared for the applicants in these proceedings contended that this was the appropriate way of determining these proceedings. Mr Pizer who appeared for the respondent WorkCover Authority submitted that in the context of the relevant legislation this Tribunal's role was a much more limited one.

33 Before turning to the detail of these submissions it is appropriate first, to look at the terms of the statute. Section 112 of the Occupational Health and Safety Act 2004 authorises 'an inspector' to issue a prohibition notice to a person where he reasonably believes that:

(a) An activity is occurring at a work place that involves or will involve an immediate risk to the health or safety of a person; or

(b) An activity may occur at a workplace that, if it occurs, will involve an immediate risk to the health and safety of a person.

34 In Part 10 of the Act, Section 127 and following provides for a review of decisions. Section 127 includes a table of decisions which are described as 'reviewable'. The table has two columns, the first being headed 'Provision under which reviewable decision is made' and the second column is headed 'Eligible person in relation to reviewable decision'. Item 10 of the table includes in Column 1 'Section 112(1) (issue of a prohibition notice)'. A number of parties are nominated in the second column of the table as an 'eligible people' in relation to that decision. The first of those is 'the person to whom the prohibition notice is issued'. The present applicants fall within that description in relation to each notice. Section 128 of the Act provides for a process named in the section heading as 'internal review'. The section authorises an eligible person to seek review by the Authority of a reviewable decision other than a decision made by the authority. Sub-section (3) provides as follows:

If an application is made to the Authority in accordance with this section, the Authority must make a decision -

(b) to set aside the reviewable decision and substitute another decision that the Authority considers appropriate.

35 Strict time limits apply. A review application relative to a notice issued under Section 112(1) of the Act must be determined with the Authority's determination and reasons forwarded to the eligible person 'within seven days after the application is made' (sub-section (4)). Failure to meet this deadline leads to a deemed affirmation of the reviewable decision (sub-section (5)). Section 129 is headed 'Review by the Tribunal' (that is this Tribunal). Sub-section (1) states:

(1) A person may apply to the Tribunal for review of -

(a) a reviewable decision made by the Authority; or

(b) a decision made, or taken to have been made, by the Authority under section 128 in respect of a reviewable decision (including a decision concerning a stay of the operation of the reviewable decision) -

if the person is an eligible person in relation to the reviewable decision.

36 It will be seen that the statute appears to draw a distinction between decisions that are made, for instance, by an inspector, as where the decisions to issue prohibition notices under Section 112(1) of the Act in the present proceedings and those made by the Authority. The latter are reviewable by the Tribunal, the former are not. The present matters appear to fall within paragraph (b) of sub-section (1). The reference to decisions 'taken to have been made by the Authority under Section 128' appears to be a reference to deemed affirmations under sub-section (5) of Section 128.

37 Mr Pizer on behalf of the Authority submitted that it was not for this Tribunal to determine what it regarded as the correct or preferable decision on the question whether the prohibition notices should be issued, rather the Tribunal's function was to review the Authority's internal review decision made under Section 128 of the Act by its review officer, Mr Murphy. He continued:

This requires it to step into Mr Murphy's shoes and determine whether his decision was the correct or preferable decision in all the circumstances. By virtue of Section 128 of the Act, this, in turn, requires it to 'review' the relevant infector's decision to issue the prohibition notice.

38 It is clear from the approach adopted by the review officer that he did not in conducting the internal review reach his own decision as to whether the correct or preferable decision was to issue or not issue the relevant prohibition notices, rather he asked whether it was 'open' to each of the inspectors to issue the relevant notice. That is, the internal review conducted was of a much more limited nature than the process described in Drake's case. The Tribunal's function was, Mr Pizer submitted, to review the internal review determination and hence the Tribunal's function in this circumstance was much more restricted than its general functions under Section 51 of the Victorian Civil and Administrative Tribunal Act as described in Drake's case. In so far as Section 51 of the Victorian Civil and Administrative Tribunal Act authorises the Tribunal to exercise the decision-maker's functions, Mr Pizer submitted it was the Authority's functions on internal review that the Tribunal was required to exercise, not the functions of the inspectors in initially determining to issue the notices.

39 Mr Pizer said that the Authority's powers on internal review under Section 128 stood in contrast to this Tribunal's powers in conducting a merits review under Section 51 of the Victorian Civil and Administrative Tribunal Act 1998. The words of Section 128(3) were wide but there was no bestowal on the person conducting the internal review of all the powers and functions of the original decision-maker. These powers he said stood in contrast to the powers given to the principal officer of an agency to conduct an internal review on Freedom of information requests under Section 51 of the Freedom of Information Act 1982. Sub-section (3) of Section 51 of the Freedom of Information Act 1982 provides as follows:

Where an application for a review of a decision is made to the principal officer in accordance with sub-section (1), the principal officer shall forthwith arrange for himself or a person (not being the person who made the decision) authorized by him to conduct such reviews to review the decision and to make a fresh decision on the original application.

40 Next, Mr Pizer took me to some passages from a report entitled 'Occupational Health and Safety Act Review' published in March 2004 by Mr Chris Maxwell QC (as the President of the Court of Appeal then was). The passages appear at paragraphs [1912] to [1914] and are as follows:

The internal review should not, however, involve a complete remaking of the decision, of the kind which occurs in a proceeding for merits review before VCAT. Where legislation provides for VCAT review, the Tribunal "stands in the shoes" of the primary decision-maker, is provided with all the relevant information and then makes its own decision, as if it were the primary decision-maker. The only difference is that the Tribunal acts on the material available at the date of the hearing.

Internal review is, by contrast, more in the nature of an appeal. That is, the purpose of the internal review is to examine the original decision, and the material on which it is based, in order to decide if any error was made. Thus, the basic materials for review would be the inspector's description of the circumstances, and his/her reasons for the decision arrived at, and such material as the party seeking review wishes to place before the reviewing officer.

The question for the reviewing officer would, therefore, be whether the decision under review was correct at the time it was made. It follows that, except in exceptional circumstances, the reviewing officer would not be expected to make an inspection of the workplace, as would be required if he/she were obliged to make a fresh decision, although this could be done if it were deemed necessary. The published information about the review processes would need to make clear the scope and limits of the review.

41 Mr Pizer said that the review officer here had carried out the internal reviews in accordance with the processes described by Mr Maxwell. These provided the template for the Tribunal's approach. He also referred to paragraph 1937 of the report where Mr Maxwell (as he then was) was dealing with the issue of external review by the Tribunal and recommended that the Tribunal review be expressed to be made as at the time the decision was made rather than in accordance with the Drake principle as at the date of the hearing before the Tribunal.

42 Mr Pizer said that in so far as Her Honour Judge Davis applied the Drake principle in determination A.B. Oxford Cold Storage v Victorian WorkCover Authority [2006] VCAT 1365, Her Honour had adopted the wrong approach and ought not to be followed. He noted that the Authority was seeking leave to appeal from Her Honour's determination and this was one of the grounds that would be relied upon. [Leave to appeal was denied by the Court of Appeal on 1 September 2006.] Mr Pizer said that had it been the intention of Parliament to provide for this Tribunal to review the Inspector's determinations it would have said so. The Tribunal's power and duty was to review the Authority's determination, in this case made under Section 128 of the Act.

43 Dr Neal, SC and Mr Rozen on behalf of the applicants submitted that the terms of Section 1278(3) were wide and unconstrained. The suggested restriction to some narrow 'appeal' function for the internal review process simply did not appear in the statute. They said that whilst Mr Maxwell's recommendations in his 2004 report were substantially reflected in the new statute by no means every recommendation had been adopted in the precisely the way suggested by Mr Maxwell. Therefore there was no necessary presumption that the statute precisely tracked the recommendations in his report on every point. They submitted that read as a whole the report clearly advocated no limited role for this Tribunal. At paragraphs [1930] to [1935] Mr Maxwell advocated the review roles being placed with this Tribunal in lieu of the Magistrates Court which had discharged the function under the Occupational Health and Safety Act 1985. At paragraph [1930] Mr Maxwell observed:

Typically, the reviewing body has available to it all the powers which were available to the primary decision maker, and its task is to make the 'correct or preferable' decision on the basis of the information available.

44 At paragraph [1993] he observed that this was the very function for which this Tribunal was established.

45 The dispute as to the form of these proceedings raises difficult questions. When one considers the very short timeframes that the Authority's internal review must meet there is much to be said for the view that these reviews must be truncated affairs as Mr Maxwell suggests. However, there is nothing in the text of Section 128 that describes an administrative review more restricted than the one traditionally provided in accordance with the principles in Drake's case. Mr Pizer submitted correctly that the word 'review' must take its meaning from its context. It does not he submitted have any immutable meaning. I accept that submission. Nevertheless the context in which the word 'review' is to be found in Section 128 is suggestive of the traditional 'merits review' as has been practised in the executive branch of governments and in administrative tribunals at least since 1975 at the Commonwealth level. The time limits are brief but in the case of prohibition notices, inspectors forming the necessary opinions and issuing them are required in effect to act on the spot. It is far from clear therefore that it is impossible, unreasonable or inconceivable that a review officer could perform the same function that the inspector performed 'on the spot' in seven days (albeit as required by the section with written reasons). I agree that Section 128 stands in contrast to the provisions of Section 51(3) of the Freedom of Information Act 1982. Section 128 contains no reference to a 'fresh decision'. Nevertheless, I am unable to attach much significance to the absence of a specific bestowal upon the Authority conducting an internal review of the same functions and powers as the inspector. As Dr Neal and Mr Rozen have observed, the powers set out in sub-section (3) of Section 128 are of the broadest kind. The power to make a new decision in substitution for the original one is in my view more consistent with a merits review or redetermination de novo than it is with some form of restricted 'appeal' process.

46 In the end the most that can be said is that whilst Mr Maxwell raised some difficult questions in his report as to the form of internal reviews, the statute has not been enacted precisely to deal with the matters which he has raised. There is nothing for instance in any of the sections that requires these Tribunal reviews to be carried out 'as at' the date of the issue of the prohibition notices rather than as at the date of the review. As it turns out in the present instances all parties are seeking to have the matter determined on the basis of the events which occurred on the 13th (the date of the Council prohibition notice), the 14th (the date of a meeting between the relevant parties) and the 15th (the date of the Gray Bruni prohibition notice of February this year) and not on some 'hindsight' basis as at August 2006. There may in some subsequent proceeding be a doubt or dispute as to the date 'as at' the relevant Tribunal review should be carried out but that question does not arise in these proceedings.

47 It follows that in my view it was incumbent upon the Authority to review the entire merits of the determinations made by the two inspectors to issue the relevant prohibition notices and the internal reviews carried out have not been a proper discharge of the Authority's duties of review. Even if that fact raises a question under the general law as to the validity of the review determinations, they remain reviewable decisions for the purposes of the Victorian Civil and Administrative Tribunal Act 1998. Section 4(2) of the Act provides that a decision is reviewable if it is made in 'purported exercise' of a function conferred or imposed by an enabling enactment and even if it is made beyond power.

48 I turn then to the first of the prohibition notices, the one directed to Mildura Rural City Council and issued by Inspector Jones on the late afternoon of 13 February 2006. The notice is issued under Section 112 of the Occupational Health and Safety Act 2004 which is to the following effect:

(a) an activity is occurring at a workplace that involves or will involve an immediate risk to the health or safety of a person; or

(b) an activity may occur at a workplace that, if it occurs, will involve an immediate risk to the health or safety of a person -

the inspector may issue to a person who has or appears to have control over the activity a prohibition notice prohibiting the carrying on of the activity, or the carrying on of the activity in a specified way, until an inspector has certified in writing that the matters that give or will give rise to the risk have been remedied.

(a) state the basis for the inspector's belief on which the issue of the notice is based; and

(b) specify the activity which the inspector believes involves or will involve the risk and the matters which give or will give rise to the risk; and

(c) if the inspector believes that the activity involves a contravention or likely contravention of a provision of this Act or the regulations, specify that provision and state the basis for that belief; and

(d) set out the penalty for contravening the notice; and

(e) state how the person may seek review of the issue of the notice; and

(f) include a statement of the effect of section 117 (proceedings for offences not affected by notices).

(3) A prohibition notice may include directions on the measures to be taken to remedy the risk, activities or matters to which the notice relates, or the contravention or likely contravention mentioned in sub-section (2)(c).

(4) A prohibition notice that prohibits the carrying on of an activity in a specified way may do so by specifying one or more of the following -

(a) a workplace, or part of a workplace, at which the activity is not to be carried out;

(b) any thing that is not to be used in connection with the activity;

(c) any procedure that is not to be followed in connection with the activity.

(5) A person to whom a prohibition notice is issued must comply with the notice.

(6) An offence against sub-section (5) is an indictable offence.

Note: However, the offence may be heard and determined summarily (see section 53 of, and Schedule 4 to, the Magistrates' Court Act 1989).

(7) If an application for review of a decision under this section has been made under Part 10, an inspector must not give a certificate under sub-section (1) in relation to the prohibition notice concerned until after the review ends.

49 It will be seen that a notice under this section may only be issued to a person 'who has or appears to have control over the activity'. The activity involved, according to the notice, it will be recalled, is:

The laying of pipes with an internal diameter of 1.5m and an excavation that is approximately 3m deep without suitable ground support.

50 An initial question arises as to whether Mildura Rural City Council had 'control' over that activity.

51 The word 'control' is not defined in the statute. Mr Pizer on behalf of the Authority submitted that the word should be given a wide meaning so as to give the fullest effect to the beneficial intention of the statute. He referred to Bull v Attorney-General (NSW) [1913] HCA 60; (1913) 17 CLR 370, 384 and R v ACR Roofing Pty Ltd [2004] VSCA 215; (2004) 11 VR 187, 203 [43] per Nettle JA. He submitted that there was no need to establish the control necessary for the issue of a notice under Section 112 to show that the relevant person had day to day or minute by minute supervision of an activity. He referred to the decision of Byrne J in Stratton v Van Driel Limited [1998] VSC 75. He submitted in so far as a decision of the Full Supreme Court of South Australia in Complete Scaffold Services Pty Ltd v Adelaide Brighton Cement Ltd [2001] SASC 199 suggested otherwise it should not be followed as being inconsistent with Victorian authority. He also referred to the ACR case.

52 According to Mr Pizer a number of matters indicated that the Council in the present case had actual control over the activity of pipelines.

53 First, Mr Pizer said that the mere fact that Council had outsourced this civil engineering project to Gray Bruni did not relieve it of its obligation to see to the safety of those who carried out the work. He referred to a document entitled 'Managing contractor health and safety risks guidelines for local government' whose principles were accepted as being applicable to the Council by Mr Searle, Council's Occupational Health and Safety Co-ordinator. Next, Mr Pizer took me to Clause 5 of the specifications in the contract between Council and Gray Bruni which he said:

Specified in considerable detail how all excavation work was to be performed, and what safety measures were to be taken.

54 He conceded that this clause was a 'boilerplate' clause, something conceded by TGM's representative, Mr Reddy who was responsible for the compilation of the contract. Nevertheless, it was he said binding between the parties. He noted that Council was empowered by the contract to carry out inspections and Mr Reddy of TGM said that he carried out such inspections two or three times a day at the most intense level of inspection to two or three times a week at other times. He noted that Mr Reddy said that he was familiar with the Trenching Code of Practice. Mr Pizer said that Clause 11.8.10 of the specifications authorised Council to inform Gray Bruni of dangers to employees of contractors or sub-contractors and obliged Gray Bruni to remedy those breaches. Council was empowered by the contract to issue directions to its contractor Gray Bruni as to occupational health and safety which the contractor was obliged to obey. Mr Reddy he observed:

Gave evidence that if he saw an activity on the site that involved an immediate risk to the health and safety of workers, he would direct Mr Ramachandra [Gray Bruni's site supervisor] to fix that problem.

55 Hence, said Mr Pizer, Gray Bruni had legal contractual and therefore actual control of the excavation work. The fact that others including Gray Bruni may also have been regarded as in 'control' for the purposes of the statute is neither here nor there.

56 In any event, Mr Pizer said Council was in apparent control of the site and this was sufficient to justify the issue of the notice. The apparent control could be seen from the following factors:

(a) The site is owned by the Council and the project [was] a Council project;

(b) When Mr Jones rang Mr Searle of the Council at 13.28 pm on 13 February 2006, Mr Jones requested the Council to attend the site and direct the sub-contractor to cease work. Mr Searle told Mr Jones that he would have someone down at the site straight away. He did not tell Mr Ellis [I believe this should be Jones] to ring Gray Bruni about the situation.

(c) When Mr Morffew of the Council arrived at the site at approximately 13.40 pm, Mr Jones asked Mr Morffew to stop the works. Mr Morffew did not say that he had not control over Prost's activities. He did not say that only Gray Bruni had that control. In fact, Mr Morffew directed the sub-contractor to stop the work, and that direction was complied with.

57 According to Mr Pizer 'these matters, taken together, make it eminately reasonable for it to appear to Inspector Jones that the Council had control over that activity'. Mr Pizer referred to Section 21(3) of the Occupational Health and Safety Act 2004 submitting primarily that it was irrelevant to the present proceeding. He quoted the following paragraph from the judgment of Bryne J. in Stratton v Van Driel Ltd [1998] VSC 75 [19]:

Given the great variety of circumstances in which s.21(3) may apply, it is neither desirable nor profitable for me to attempt anything like an exhaustive analysis of the word "control" or the expression "have control over" and I do not do so. In the present case, that which is the subject matter of the alleged duty is the manner in which Mr Baum went about his work on the roof without protection from the risk of injury should he fall. The question for determination is in what circumstances, if at all, it might be said that this activity was under the control of Van Driel where no direction was given by Van Driel as to this activity. In such a case, Van Driel would, in ordinary speech, be said to have control over the activity in at least two situations. The first is where it had a legal right to direct that Mr Baum not perform the work in that way. The second is where, notwithstanding that the person has no right to give it, the employer saw it as within its area of authority to give such a direction and, importantly, the worker would accept it and act upon it. It matters not in either situation that other persons might also have control over the same activity.

58 He submitted that the Council had control in both of the senses referred to by His Honour, first, it had a contractual right to direct that the sub-contractor not perform trenching work in an unsafe manner by virtue of the terms of its contract with Gray Bruni and had control in the second sense referred to by His Honour in that it saw it as within its area of authority to give a direction to the sub-contractor which was complied with by that sub-contractor.

59 Dr Neal and Mr Rozen denied that Council was in control of this activity in the relevant sense. They submitted that the word control in this statute meant actual control not the right to exercise it deriving by some abstract entitlement in contract or by virtue of ownership. The question was who was in actual control at the time that the activity was being carried out. They referred to the decision of the Full Court of the Supreme Court of South Australia in Complete Scaffold v Adelaide Brighton Cement [2001] SASC 1991. In the judgment of Doyle CJ [55] - [57], [68] - [70]. They submitted that Stratton's case relied upon by the Authority dealt with a defendant who was the principal contractor on site, viz. the equivalent of Gray Bruni. Stratton's case did not deal with the liability of a proprietor under an engineering contract at all. He submitted that the approach of the Court of Appeal in ACR indicating an analysis of where practical control lay so that whilst the principal contractor in that case was regarded as in control of certain elements it was not on the Court's analysis regarded as in control of the operation of the crane itself.

60 They submitted that it was not practicable for Council to impose yet a further layer of supervision upon that which already existed. The matters detected by Inspector Jones were isolated matters as far as Gray Bruni and the Council were concerned. They said that in so far as Mr Morffew gave a direction to Mr Prostamo he was responding to a direction given to Council officer Mr Morffew pursuant to Section 120 of the Occupational Health and Safety Act. They said that Mr Morffew according to his own evidence acted on the basis that he felt obliged to comply with the request.

61 Before turning to the issues raised by these submissions it is appropriate to consider the background upon which the present issue must be resolved. First, none of the parties before me contended that a private individual who had contracted with a registered builder to erect a new house for him or to have building renovations conducted on his residence would be regarded as having 'control' of the works carried on in pursuance to the contract for the purposes of Section 112. A person is not vicariously responsible in the law of negligence for the defaults of an independent contractor merely because that contractor is carrying out works for the benefit of the principal and was engaged by the principal for that purpose. Sweeney v Boylan Nominees Pty Ltd (trading as Quirk's Refrigeration) [2006] HCA 19; (2006) 80 ALJR 900. However where a person owes a non-delegable duty, that person may be liable for the wrongful acts of an independent contractor which breached that duty. So where an independent contractor dropped an object which struck and injured an employee of the State Transport Authority, the Authority was liable for failing to provide a safe system of work Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672. In the context of occupational health and safety the 2004 Act imposes specific duties on employers under Section 21. Sub-section (3) extends the concept of who is an employer and who an employee to independent contractors and their employees. The sub-section provides as follows:

(a) a reference to an employee includes a reference to an independent contractor engaged by an employer and any employees of the independent contractor; and

(b) the duties of an employer under those sub-sections extend to an independent contractor engaged by the employer, and any employees of the independent contractor, in relation to matters over which the employer has control or would have control if not for any agreement purporting to limit or remove that control.

62 The result seems to be that at common law there would be no question of Council being responsible for the wrongful acts of Gray Bruni or Gray Bruni's sub-contractor unless it specifically directed the wrongful act. The Occupational Health and Safety Act 2004 by the specific provisions of Section 21(3) extends employer duties so as to cover sub-contractors. Nothing in the statute in terms creates any vicarious liability. Employer is defined in Section 5 of the Act as follows:

"employer" means a person who employs one or more other persons under contracts of employment or contracts of training;

63 There is therefore nothing in the statute which in terms impose any form of liability upon a proprietor under a civil engineering contract. Acknowledging the necessity to give this important and salutary legislation a broad interpretation to enable it to achieve its vital objectives it is difficult not to conclude that if Parliament intended to impose liability for health and safety issues upon proprietors under civil engineering contracts it would have said so directly in the same way as it has made direct provision extending the liability of employers. Inspector Jones said the rationale for regarding a body such as the Council as being in control of activities for the purposes of a prohibition notice under Section 112 of the statute where an ordinary citizen having a house constructed would not be, was that Council had the backing of extensive contractual entitlements and the technical expertise and resources to give effective supervision which a private citizen would lack. In the 1990s provisions commencing with Section 208A of the Local Government Act 1989 required a local government council to 'ensure that in any financial year it is a party to competitive arrangements that have a total value of 50% or more of its total expenditure'. These provisions have since been repealed. However Council witnesses in the course of their evidence before me denied that this Council has extensive in-house expertise in these civil engineering matters. It would seem paradoxical that the inclusion of provisions requiring the safe execution of engineering works should somehow put a contracting proprietor in a worse position relative to public law liability than it would have been if it had simply given no thought to the issue of safety at all. I am far from sure that the distinction drawn by Inspector Jones is a valid one.

64 None of the cases that I was referred to appear to deal with the situation of a proprietor under a civil engineering contract being regarded as 'in control' of the relevant activity. In the ACR Roofing case, ACR was the contractor, in effect in the equivalent position of Gray Bruni. The crane company James Cranes engaged to lift certain material was in a similar position to the sub-contractor Prost. I note in passing that the evidence appears to indicate that there is no intention in the present circumstances to prosecute the Council. In ACR however, the charge was that contrary to Section 21 of the 1985 Act, ACR had failed to provide and maintain for its employees a working environment that was safe and without risks to health. The issue of control arose only because in a somewhat differently worded sub-section (3) from the one which appeared in the 2004 Act, ACR was liable with respect to the contractor's employees only 'in relation to matters over which the employer - has control'. The somewhat different layout of the present sub-section (3) does not seem to change its substance. It was for that reason that the Court needed to consider the degree to which ACR had control over the activities of the crane company. Nettle JA noted that ACR owed the duty under Section 21 of the Act_:_

... as much to the employees of contractors as to its own employees. ACR could have used its own employees to lift up the sheets from the ground to the roof, if necessary one by one. Had it done so, it would have been bound to do what was practicable to ensure that the mesh [providing fall protection] was in place or else that the employees were fitted with individual restraints. The fact that ACR chose a crane company instead of employees to lift up the sheets can in principle make no difference. ACR owed to the employees of contractors engaged upon the roof the same duty as it owed to its own employees to do what was practicable to guard against a fall from the roof.

[2004] VSCA 215; (2004) 11 VR 187, 213 [67]

65 This is similar to the non-delegable duty in Kondis. ACR this duty only with respect to activities over which it had control.

No doubt the fact that James Cranes was an expert crane company and the deceased was an expert dogman did make a difference in some respects. For as Stuart-Smith, LJ observed in R v Associated Octel Lt__d:

"...the question of control may be very relevant to what is reasonably practicable. In most cases the employer/principal has no control over how a competent or expert contractor does the work. It is one of the reason why he employs such a person - that he has the skill and expertise, including knowledge of appropriate safety precautions which he himself may not have. He may be entitled to rely on the contractor to see that the work is carried out safely, both so far as the contractor's workmen are concerned and others, including his own employees or members of the public; and he cannot be expected to supervise them to see that they are applying the necessary safety precautions. It may not be reasonably practicable for him to do other than rely on the independent contractor.

But there are cases where it is reasonably practicable for the employer to give instructions how the work is to be done and what safety measures are to be taken. Examples of such cases are the Swan Hunter case...

The question of what is reasonably practicable is a matter of fact and degree in each case. It will depend on a number of factors so far as concerns operations carried out by independent contractors; what is reasonably practicable for a large organisation employing safety officers or engineers contracting for the services of a small contractor on routine operations may differ markedly from what is reasonably practicable for a small shopkeeper employing a local builder on activities on which he has not expertise. The nature and gravity of the risk, the competence and experience of the workmen, the nature of the precautions to be taken are all relevant considerations."

For example it could hardly be said that ACR had control over the siting of the crane or the method of lifting or that it was practicable for ACR to do much if anything about either of those matters. Prima facie those things were so much within the sphere of the contractor's expertise and beyond that of ACR as to mean that ACR's obligations in respect of those activities could well have been discharged by warning the contractor of any special danger of which ACR knew or should have known.

66 This passage from the judgment of Nettle JA which was concurred in by the other two Judges, Ormiston and Vincent JJA supports the contention put by Dr Neal and Mr Rozen that the question of control is to be dealt with as a matter of practicality.

67 Neither Mr Searle nor Mr Morffew claimed expertise in what were the proper modes of safe trench digging. Mr Reddy, the representative of the project manager company TGM did claim acquaintance with that area, acknowledging his knowledge of the trenching safety code. I am unable to see however how the involvement of Mr Reddy supports the view that Council was in control of the trenching activities. In truth the engagement of TGM as project manger and the tasking of its employee Mr Reddy to perform the project management function on a day to day basis has the effect of distancing Council from day to day control of the trenching activities rather than increasing its 'control'. To put it another way, is a proprietor under a domestic building contract to be regarded as somehow more in control because he has appointed an architect to supervise the project? I accept the submission made by Dr Neal and Mr Rozen that the acceptance of the principle that a person engaging independent contractors to do work for him may discharge his duty of care by engaging the services of independent contractors who are competent themselves to control their systems at work without supervision (Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 15, 47-8 per Brennan J as he then was) constitutes a proper analogy with the present situation.

68 The Council did not profess expertise in these technical civil engineering matters. It engaged a head contractor which was apparently in good standing and competent. Likewise, it engaged a project manager. It quite reasonably left the control of the trenching operations to these persons, and their servants and contractors.

69 In my view the Council was not 'in control' of the trenching activities on 13 February. If it were appropriate to view this matter in another way I do not believe that there was evidence then or now which could properly have satisfied Inspector Jones that Council was 'in control' of these activities.

70 Nor in my view can it be said that Council was in apparent control of the activity. The now repealed provision to which I made reference in the Local Government Act 1989 led to large scale outsourcing in local government even before those provisions, many local government projects were outsourced. It would be a wild and unjustified leap for someone to conclude that merely because a project was being carried out on Council land and that it was in a general sense a Council project that Council was 'in control' of the activity rather than the head contractor, the sub-contractor, their servants and agents. There were no council officers on site until Mr Jones telephoned Mr Searle. Mr Jones telephoned Mr Searle because of the extraordinary circumstances in which he found himself. His directions to cease work had been ignored, he says he had been assaulted. He turned to Mr Searle as a person in the community with whom he was acquainted and who might render assistance. There was some debate as to whether when Mr Morffew relayed Inspector Jones' direction to stop work to Mr Prostamo he was issuing a statutory direction or not. This was said somehow to bear upon the question of who was in apparent control. In my view Inspector Jones was merely seeking a practical means of achieving what he believed safety required, namely a cessation of trenching operations. He was seeking the attendance and assistance of anyone whom Mr Prostamo would take notice of. When the Police constables who attended had performed this role it was not indicative of the Victoria Police being in control of the activities. Similarly if a relative of Mr Prostamo had been on site and in the hope of defusing what had obviously become a most ugly situation, persuaded Mr Prostamo to stop this would not indicate that the relative was in control of the trenching activity. Mr Searle and Mr Morffew were in my judgment acting as much in the capacity of good neighbours in trying to halt an ugly and dangerous situation as they were in exercising any form of 'control'. If Mr Pizer's submissions on this point were to be countenanced, the proper advice to persons in their situation would be 'refuse to assist. Say this is a matter for the head contractor or the project manager'. This would be a most unhappy message to give anyone. It follows that I do not believe that Council was in apparent control of trenching activities on 13 February or if it matters, I do not believe that there was evidence which would properly satisfy Inspector Jones that Council was in apparent control either as at 13 February or as at the present date.

71 These findings are sufficient to lead to the conclusion that the Commission's determination made under Section 128 with respect to the Council prohibition should be set aside. It is therefore unnecessary for me to consider any of the Council's other attacks upon the validity of the notice.

72 Dr Neal and Mr Rozen submitted that there was no basis upon which it was reasonable to believe that an activity was occurring as at 15 February 2006 or that there was one which might occur at the site but if it occurred would involve an immediate risk to the health and safety of any person. One or other of those beliefs was necessary for the valid issue of the Gray Bruni notice. They noted that work had ceased on the afternoon of 13 February and first a para-webbing and then a cyclone wire fence had been placed around the excavations. The Council prohibition notice had been issued and a copy posted on the fence. On 14 February 2006 at a meeting of all interested parties including representatives of the Authority, senior Gray Bruni officials and Council officers full support had been given to the Authority and no attempt had been made to defend what had been done. Assurances had been given that the offending sub-contractor would not return to the site. Inspector De Graves was aware that Mr Prostamo was removing his tools. There was in fact full documentation of a safe trenching system on site. It was either viewed by Inspector De Graves or if not, this was as a result of Mr De Graves own decision rather than any refusal to produce the documentation.

73 Dr Neal and Mr Rozen said that in so far as Inspector De Graves said he felt obliged to issue the prohibition notice because he did not wish to explain his failure to do so at a coronial inquest this was an irrelevant consideration.

74 They said that the power to issue prohibition notices is discretionary, introduced by the word 'may' (see Section 45 Interpretation of Legislation Act 1985). They said that the word 'may' is not apt to provide for issue of a notice where there is a bare possibility of the relevant activity occurring:

Otherwise prohibition notices would issue like confetti because the

possibility that a person may break the rules is always present. Prohibition notices confer a power on inspectors to make specific conduct an indictable criminal offence, based on strict liability - there is no practicability component to this offence. Further, prohibition notices issue against the background of the S.21 duties. It is not as though the duty holders operate in a vacuum in the absence of a prohibition notice. Parliament conferred the power to issue prohibition notices for situation of 'immediacy', not on the bare possibility that someone might break the rules at some time in the future.

75 They said there was no reasonable basis for Mr De Graves to conclude either that a relevant activity was occurring or that it may occur in the future.

76 They said that there were many other options open to the inspector in the circumstance. They referred for instance to paragraph 15 of the Worksafe Compliance and Enforcement Policy which states:

Where a non-compliance with Victoria's OHS laws is detected, or whether there is an immediate risk, the inspector will issue a notice or direction to compel the duty holder to control the risk, unless the matter is addressed by the duty holder at the time of its detection and in the presence of the inspector.

After consideration of the enforcement criteria, the following enforcement measures are available to an inspector to compel a duty holder to take remedial action to rectify an alleged breach:

•

Voluntary compliance

•

Improvement notice

•

Prohibition notice

•

Power to give directions

•

Review of a

•

Review of a direction to cease work

A non-disturbance notice may also be issued where appropriate.

77 They also referred to the notice from an executive director dated 22 June 2005 stating that 'prohibition notices should be issued when contraventions or immediate risks are observed, unless voluntary compliance is achieved while the inspector is present'. They said that this was the proper and more appropriate way for Inspector De Graves to have proceeded.

78 Mr Pizer on behalf of the Authority submitted that the notice should be amended so as to record Inspector De Graves as having formed the opinion that an activity may occur at the site, but if it occurred would involve an immediate risk to the health and safety of some person. He submitted that the notice should otherwise be affirmed. It was reasonable for the inspector to form this opinion according to Mr Pizer because persons had recently been observed within the excavation without proper trenching shield protection. This was a very dangerous practice. Gray Bruni had failed in its duty of supervision and the inspector had no reason to believe that any new sub-contractor would not perform the work in the same unsafe manner. Mr De Graves had not been provided with:

Paperwork demonstrating a safe system of work, despite having requested that paperwork (in any event, even if an appropriate system had been documented, that system had not been "enabled or enacted" [to use Inspector De Graves' language] at the time of Inspector Jones visit to the site.

79 Mr Pizer said it was clear to Inspector De Graves that Mr Ramachandra had little knowledge of safety in trenching operations and no remedial work had been taken therefore, it was reasonable for the Inspector to form this belief.

80 In my view the Gray Bruni prohibition notice should be set aside. This conclusion follows whether the Tribunal's task is to make its own determination based on the materials before it or merely to consider whether it was 'open' to Inspector De Graves in the circumstances to form the necessary belief to support the issue of the prohibition notice on 15 February.

81 I reject the submission made by Mr Pizer that the situation which confronted Inspector De Graves indicated no improvement from what had occurred on 13 February. Work had stopped entirely. The offending sub-contractor had been ordered off the site. The offending sub-contractor had received its own prohibition notice. There was no reason to think that the offending sub-contractor would do any further work on the site, in fact it did no more work on site. Inspector De Graves correctly observed that there were hundreds of metres of drain to lay. Clearly someone was going to be tasked at some point with the responsibility of completing that work. Everything which had happened following the regrettable experience of Inspector Jones on 13 February indicated full and complete co-operation by both Gray Bruni and the Council. On 14 February there was a meeting at the Council chambers attended not only by a group of inspectors from the Authority but also senior executives from Gray Bruni who had taken the trouble to travel from Melbourne. In the evidence before me no single reservation or reluctance on the part of Council and Gray Bruni to co-operate with the Authority is demonstrated. There was nothing which either the Council or Gray Bruni was asked to do which it failed to do. I specifically reject any contention that Gray Bruni failed to produce documentation which it was asked to produce. As recorded above if Inspector De Graves sighted no documentation on safe system of work it was because he elected not to follow the matter up and did not regard it as significant. Again, in the spirit of co-operation which had been demonstrated by the late afternoon of 13 February through 14 February and continuing on 15 February if the Inspector had misgivings as to Mr Ramachandra's experience and competence as a site supervisor there is no reason to think that Gray Bruni would not have considered replacing him had it been requested to do so.

82 Dr Neal and Mr Rozen submitted that it was an irrelevant consideration for Inspector De Graves and also Inspector Jones to approach their tasks with the thought in mind 'how would I justify what I am doing or not doing if I were giving evidence at a coronial inquiry?' I reject the contention that this was an irrelevant consideration for either inspector. It was no more in my view than a very graphic way of envisioning the heavy responsibility which devolved upon them in the discretions which they had to exercise. Nevertheless, it would not be the right way of exercising those discretions if that consideration were permitted to override every other. In the criminal justice system for instance judges and magistrates are frequently required to exercise discretions for instance to grant bail to a criminal defendant or to give a person convicted of a serious offence a non-custodial sentence or a shorter than expected custodial sentence in light of factors personal to the defendant. These judicial officers must always be conscious that if the defendant commits a serious crime shortly after release the judge or magistrate may be subjected to public vilification on the basis that the offender would not have been 'on the streets' to commit the further offence but for the leniency. That is, no doubt a right and proper and relevant consideration but not one that can be allowed to outweigh every other. I was not referred to any authority as to the meaning of the word 'may' in the context of the formation of an opinion that a particular activity 'may occur'. Nevertheless, I accept the contention of Dr Neal and Mr Rozen that something more than the mere possibility of occurrence must be made out. Unless this were true it is difficult to see how a conscientious inspector could ever refrain in any circumstance in issuing a prohibition notice where any hazardous work was being undertaken.

83 Inspector De Graves sought to draw a comparison between the statutory force of the prohibition order creating a certainty and reliance upon mere promises which in his experience are by no means always kept. Yet the regime established by the Occupational Health and Safety Act 2004 necessarily entails the Authority accepting promises. If it did not the construction industry would grind to a halt. Where a risk is said to be remedied as these risks in the present proceedings were, the risk is 'remedied' in the sense that the duty holder demonstrates an ability to carry out a particular activity safely and in accordance with appropriate codes and the Authority accepts a promise that this demonstrated ability will be carried into effect in the future. In this case Inspector Johnston had visited the site in January and noted that a proper and safe system of work was being employed. In light of that fact, Inspector De Graves' opinion that the safe system had not been 'enacted and implemented' cannot be accepted. What seems to have occurred is that the safe system was 'enacted and implemented' and then the sub-contractor began to 'back slide' from proper practice.

84 Aside from the evident desire of co-operation which both Council and Gray Bruni demonstrated which militated against any belief that work was going to re-start in any way that was not sanctioned by the Authority there is the further consideration that Council was itself subject to a prohibition notice. My determination seeks to explain why in my view that prohibition notice should not have issued and should now be set aside. Even accepting that a prohibition notice is not like the judgment of a superior court of record deemed valid until set aside on appeal and therefore immune from collateral attack, the very existence of a prohibition notice against the proprietor on the basis that that proprietor was in control of the entire construction operation would render it unlikely in the extreme that Gray Bruni would have pressed on with another sub-contractor in some half cocked manner without a green light from the WorkCover Authority. Further, as Dr Neal and Mr Rozen observed, to continue in those circumstances would amount to a criminal offence against Section 21 of the Occupational Health and Safety Act 2004. Whilst it seems Gray Bruni is not to be prosecuted for what happened on 13 February it would be obvious to any of Gray Bruni's officers that were it to continue after what had happened on 13 February in the same vein that a very different situation would confront the Authorities and the risk of prosecution would become high almost to the point of certainty.

85 In my view therefore, there is no basis for a finding that an activity might occur that if it occurred would involve an immediate risk to the health and safety of a person nor was there material upon which a reasonable person in Inspector De Graves position could have made such a finding on the afternoon of 15 February 2006 hence the Gray Bruni prohibition notice should be set aside.

86 Having dictated the above I was made aware that the Court of Appeal had delivered reasons dealing with the nature of this Tribunal's review jurisdiction in matters under the Occupational Health and Safety Act 2004 in refusing leave to appeal in the AB Oxford case. I delayed delivering these reasons until the text of the Court's judgment was available. Having now had the advantage of reading the judgment of Nettle JA (with which Ashley JA concurred) I conclude that the approach I have taken to this determination is in conformity with the Court's judgment.