MPG Constructions Brisbane Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2020] QIRC 235

Work Health and Safety Regulation 2011 (Qld), r 315K

Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685

Ninemia Maritime Corp v Trave GmbH & Co KG "The Niedersachsen") [1984] 1 All ER 398

Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319

Frigo v Culhaci [1998] NSWCA 88

Multiplex Constructions Pty Ltd v the Regulator under the Work Health and Safety Act 2011 [2018] QIRC 116

Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266

Commissioner of Corporate Affairs v Guardian Investments Pty Ltd [1984] VicRp 81; [1984] VR 1019

Ms P. Bindon, Counsel instructed by Mr R. Abdel-Massih for the Applicant.

Mr P. Waltham, and with him Ms C‑L. Godfrey, for the Respondent.

• [1] On 27 November 2020 MPG Constructions Brisbane Pty Ltd (the Applicant) filed an Application for a Stay of the Internal Review Decision dated 22 October 2020 and the Improvement Notice dated 30 September 2020, the subject of the Review, until the hearing and determination of the Application for External Review by the Commission.

• [2] The Applicant is the principal contractor of the 152 Wharf Street project, a commercial office tower development located in Spring Hill, Brisbane and a PCBU[1] within the meaning of the Work Health and Safety Act 2011 (WHS Act) in relation to that project.

• [3] On 30 September 2020, Mr D. Cappelletti, a Work Health and Safety Queensland Inspector (the Inspector) issued an Improvement Notice to the Applicant with details of the contravention as follows:

I, David Cappelletti reasonably believe on 29-SEP-2020 at 15:30 that you are contravening a provision of the: Work Health and Safety Regulation 2011 - regulation 315K(2).

• [4] The description of the contravention in the notice states:

I carried out an inspection on site and observed a large Gantry which has been erected around parts of the construction site over the public footpath areas. The gantry is carrying various site sheds such as offices, toilets and lunch rooms. The gantry support posts are close to a very busy road system which carries trucks, cars, motor bikes etc. These posts have not been guarded or protected against the risk of impact from passing vehicles, which may lead to failure or collapse of the gantry system.

• [5] The Improvement Notice asserts that the Inspector, Mr D. Cappelletti, reasonably believed that the Applicant was contravening regulation 315K(2) of the Work Health and Safety Regulation 2011 (the WHS Regulation) because the support posts of the gantry are close to a very busy road system and have not been guarded or protected against the risk of impact from passing vehicles which in turn may lead to failure or collapse of the gantry system. Directions as to the measures to be taken to remedy or prevent the contravention or likely contravention are as follows:

(a) be able to stop an object that may reasonably be expected to fall on it from falling; and

(b) have an overhead platform that is secured to prevent it lifting or coming apart; and

(c) have solid sheeting erected along the outer edge of its overhead platform to at least the higher of -

(ii) the height of any object stored on the platform; and

(d) if it is used to store materials or has a shed erected on it - be designed by an engineer to take the additional load involved; and

(e) be able to stop water or dust falling on persons; and

(f) have natural or other lighting of at least 50 lux illuminating all of the area below it; and

(g) not tip over or rotate if a force that could reasonably be expected to be applied to it is applied to it.

Example of a force mentioned in paragraph (g) - the force of a truck backing into the gantry.

• [6] On 28 October 2020 the Respondent informed the Applicant of an internal review decision of 22 October 2020 confirming the Inspector's decision to issue the Improvement Notice I2013372 to the Applicant in accordance with s 315K(2) of the WHS Regulation.

• [7] The stay application is opposed by the Respondent.

• [8] The relevant decision was initially made under regulation 315K(2) of the WHS Regulation which states:

(a) be able to stop an object that may reasonably be expected to fall on it from falling; and

(b) have an overhead platform that is secured to prevent it lifting or coming apart; and

(c) have solid sheeting erected along the outer edge of its overhead platform to at least the higher of -

(ii) the height of any object stored on the platform; and

(d) if it is used to store materials or has a shed erected on it - be designed by an engineer to take the additional load involved; and

(e) be able to stop water or dust falling on persons; and

(f) have natural or other lighting of at least 50 lux illuminating all of the area below it; and

(g) not tip over or rotate if a force that could reasonably be expected to be applied to it is applied to it.

• [9] In support of the application the Applicant relies on the affidavit of Michael Cunningham sworn on 18 December 2020.

• [10] The Applicant submitted the External Review Application on the basis that the Internal Review Decision should not have confirmed the Improvement Notice because:

(a) there was no proper basis for the inspector to have formed the reasonable belief asserted in the Improvement Notice;

(b) the directions the inspector made in the Improvement Notice for measures required to be taken to remedy the contravention were incapable of being complied with because they merely repeated regulation 315K(2); and

(c) the issue of the Improvement Notice was inconsistent with the National Compliance and Enforcement Policy.

• [11] Section 229 of the WHS Act sets out the process for an external review as follows:

(1) An eligible person may apply to the external review body for a review (an external review) of -

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

(b) a decision made, or taken to have been made, on an internal review.

(2) A review by QCAT is provided for under the QCAT Act.

See QCAT Act, chapter 2, part 1, division 3 (Review jurisdiction).

(3) A review by the commission is provided for under division 4.

• [12] Section 229C of the WHS Act provides that the Commission may stay a decision to secure the effectiveness of the review:

(1) The commission may grant a stay of the decision to secure the effectiveness of the review.

(a) may be given on the conditions the commission considers appropriate; and

(b) operates for the period fixed by the commission; and

(3) The period of a stay must not extend past the time when the commission decides the application.

(4) An application affects the decision, or carrying out of the decision, only if the decision is stayed.

• [13] The principles governing the exercise of a discretionary power to stay are set out by the New South Wales Court of Appeal in Alexander v Cambridge Credit Corporation Ltd.[2] Those principles can be summarised as follows:

1. The onus is upon the applicant to demonstrate a proper basis for a stay which will be fair to all parties.

2. The mere filing of an appeal does not demonstrate an appropriate case or discharge the onus.

3. The court has a discretion involving the weighing of considerations such as balance of convenience and the competing rights of the parties.

4. Where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay.

5. The court will not generally speculate upon the appellant's prospect of success but may make some preliminary assessment about whether the appellant has an arguable case, in order to exclude an appeal lodged without any real prospect of success simply to gain time.

• [14] In considering the exercise of the discretion to grant the stay, it is sufficient that the Applicant for the stay demonstrate a reason or an appropriate case to warrant favourable exercise of the discretion.
• [15] The "principles" 3, 4, and 5 summarised above are apposite to the determination of this application. For convenience, I will consider 5, 3 and 4 in that order below.

• [16] The Commission must be satisfied the Applicant has an arguable case. A "good arguable" case is "one which is more than barely capable of serious argument, and yet not necessarily one which the judge believes would have a better than 50 per cent chance of success."[3] It is a less stringent test than requiring proof on the balance of probabilities.[4]

• [17] In the current application, and its substantive matter, the Applicant identifies three grounds to support its contention that the Improvement Notice ought to be set aside. They are:

(a) there was no proper basis for the inspector to have formed the reasonable belief asserted in the Improvement Notice;

(b) the directions the inspector made in the Improvement Notice for measures required to be taken to remedy the contravention were incapable of being complied with because they merely repeated regulation 315K(2); and

(c) the issue of the Improvement Notice was inconsistent with the National Compliance and Enforcement Policy.

• [18] The Applicant entered a contract for the construction of the gantry system, including full engineering design and sign off, in early 2020.

• [19] The gantry system originally installed by the Applicant included concrete counterweights between each post of the gantry. However, in or about 10 March 2020, the Brisbane City Council required the Applicant to remove the concrete counterweights as they posed a risk of obstructing the line of sight of motorists on the road thereby presenting a safety hazard.

• [20] In order to comply with the request of the Brisbane City Council, the Applicant obtained engineering advice on how to remove the concrete counterweights but maintain the compliance of the gantry. The engineering advice suggested that the counterweights could be removed if additional posts were installed. In response to that advice, the Applicant had additional internal posts installed and the modified gantry was then certified.

• [21] On 28 September 2020 Inspector Cappelletti attended the Applicant's worksite at 152 Wharf Street, Spring Hill. Whilst on site he undertook various inspections. His official notebook records "gantry around site engineer sign off by Knight Consulting engineer for gantry around site ... also discussed carrying out risk assessment regarding the traffic flow and risk of the gantry legs being impacted by a vehicle".[5]

• [22] On 29 September 2020 Inspector Cappelletti forwarded to the Applicant a copy of his Construction Workplace Inspection Report concerning the site inspection on 28 September 2020. Of relevance is the notation in relation to the agreed actions to be undertaken by the duty holder. The note reads:

Contact gantry installer and carry out traffic monitor for possibility of providing protection to gantry posts from vehicle impact.

• [23] The Inspector returned to the Applicant's workplace at 3:00 pm on 29 September 2020 to obtain photos of the gantry and surrounding roadways. Inspector Cappelletti recorded in his notebook that:

• Site parked and monitored traffic passing the site;
• A large amount of traffic passing the site and that the workplace is on a corner road;
• This Road - Wharf Street is a main road running into the city;
• I observed a large amount of vehicular traffic passing the gantry/site - a large number of heavy vehicles (trucks), cars and motorbikes passed the site;
• A risk exists that if the leg or legs of the gantry are struck and they fail - the people on the site who are on the buildings (site sheds) on top of the gantry will be injured if the gantry were to collapse/fall.[6]

• [24] Mr Cunningham provided Inspector Cappelletti the correspondence from Mr Peter Knight of Knight Consulting Engineers Pty Ltd dated 8 August 2017. The subject of the correspondence was the Guardian Gantry System - Vehicle Impact Loadings. This correspondence was provided by Inspector Cappelletti to Mr Stuart Davis, the Chief Advisor (Construction Engineering) at Workplace Health and Safety Queensland.

• [25] By email dated 29 September 2020 Mr Davis wrote:

I've had a look at the attached engineer's certification letter. He has been careful in his comments about vehicle impact loadings - which you would expect to be the case. To me he is trying to say that if a vehicle hits one post the remaining three posts should prevent total failure of the gantry. But if a vehicle hits one leg and buckles then the whole structure will be affected - for example a corner will be pulled down and the whole deck will tilt. If the there (sic) are site sheds on top then the site shed will also tilt and there is a risk of the site shed dislodging or the whole structure becoming unstable.

To my knowledge, the standard industry practice is to place concrete collision barriers between the posts of gantries. These have the two advantages of providing more mass to absorb the impact of a vehicle collision and of redirecting a vehicle's path so that it is less likely to collide with a post on the gantry. With this in mind I think there is a good argument for making the PCBU install concrete barriers - especially if the gantry is next to a busy road.

• [26] The Applicant submits that at no point did Inspector Cappelletti conduct an inspection of the gantry; he only mentioned the gantry as he was leaving the site; and at that point he did not inspect the gantry and limited his inquiry of Mr Cunningham to the provision of the "engineering sign off".[7]

• [27] As a consequence of this limited request, the Applicant submits that they only provided the initial letter of the engineer, Mr Peter Knight (which was three years old and described the gantry system in a generic sense)[8] rather than all the relevant documentation relating to the specific state of the gantry at the current time (including the demand from Brisbane City Council that the previously installed concrete counterweights be removed for traffic safety reasons and the subsequent remedial work performed to the gantry under engineering advice).

• [28] In response to the provision of the material from the Applicant, Mr Cappelletti replied to Mr Cunningham on 29 September 2020 in the following terms:

Looks like they might be putting the ball back into your court for doing a risk assessment and implement the necessary controls if required. As I don't know the traffic flow, types of vehicles, road layout etc it will be up to you to look at all these parameters and implement controls accordingly.

• [29] Mr Cunningham replied to Inspector Cappelletti by email on 29 September 2020 as follows:

I have a couple of audits done recently by Aaction Traffic, which highlights the amount of traffic. Generally the busy times vary however will carry out a risk assessment and monitor for the future....

• [30] In a letter dated 10 December 2020 Mr K Patrick Kwan Cheung, an Engineer with Peak Construction Engineering writes:

The Guardian Gantry System is a modular system comprising of standard units - decks, posts, adjustable feet, concrete ballast infills and handrails that are connected together to form a structure which can sustain vertical loading up to 10kPa (1000kg per square metre) and relevant wind loads appropriate to the construction location.

While vehicular impact loadings have not been specifically catered for in the design process, the nature of the design by provision of redundant legs and bolted connections between adjacent modules is such that a vehicular impact and subsequent failure of a single post will not result in the failure of the entire structure. Increased deflections should be expected as a result of post failure.

If the location where the gantry is erected is abnormal or unusual then it is recommended that the hirer/end user do their own risk management assessment and provide protection to the posts accordingly.

• [31] The power to issue the notice under s 191 of the WHS Act is enlivened where an inspector reasonably believes that a person is contravening a provision of the Act or has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated.

• [32] Reasonable belief is not defined in the WHS Act. In George v Rocket & Anor[9] the High Court was called on to consider the meaning of "reasonable grounds" in the context of whether or not a Magistrate had reasonable grounds to issue a search warrant. In a unanimous judgment, the Court (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ) said:

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.

• [33] The High Court cited with approval the following passage of Kitto J in Queensland Bacon Pty Ltd v Rees:[10]

A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to a 'slight opinion, but without sufficient evidence', as Chamber's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which 'reason to suspect' expresses in sub.s.(4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear (that the situation of the payer is in actual fact that which the sub-section describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and other creditors.

• [34] This passage was applied by Ormiston J in Commissioner of Corporate Affairs v Guardian Investments Pty Ltd,[11] where his Honour said, in relation to the expression has reason to suspect that a person has committed an offence in s.l6A of the Companies (Vic) Code: " ... the word 'suspect' requires a degree of satisfaction, not necessarily amounting to belief, but at least extending beyond mere speculation as to whether an event has occurred or not''.

• [35] In his affidavit of 8 November 2019, Inspector Cappelletti deposed that in forming the reasonable belief that the Applicant was contravening regulation 315K(2) he had regard to the observations at the workplace on 28 and 29 September 2020, the correspondence dated 8 August 2017 from Knight Consulting Engineers Pty Ltd and the email from Stuart Davis.
• [36] The inspections undertaken by the Inspector on 28 and 29 September 2020 together with the correspondence of Knight Consulting Engineering and informed by the advice of Mr Davis, provided a sufficient basis upon which he could have formed a reasonable belief that the Applicant is contravening regulation 315K(2) of the WHS Regulation.

• [37] The second ground upon which the Improvement Notice is being challenged by the Applicant is the contention that the Notice is incapable of being complied with. It is submitted:

a. it is overbroad, and therefore both unreasonable and uncertain; and

b. it lacks particularity in that there is no indication of how the general terms of reg 315K(2) (or any part of it) are to be addressed by the Applicant in its particular circumstances.

• [38] Whilst it is correct that the Inspector recites the entirety of regulation 315K(2) of the WHS Regulation, it is immediately apparent when reading the Improvement Notice together with the matters set out in the regulation that the risk which is sought to be dealt with by the Improvement Notice is regulation 315K(2)(g) of the WHS Regulation. That provision specifically states:

(g) not tip over or rotate if a force that could reasonably be expected to be applied to it is applied to it.

Example of a force mentioned in paragraph (g) - the force of a truck backing into the gantry.

• [39] The risk to which the Applicant is directed is a risk of vehicular impact to unprotected posts and the potential consequences that might flow from that. What is apparent from the letter of the engineer is that vehicular impact loadings have not been specifically catered for in the design process. Moreover, the assertion that the Notice is incapable of being complied with lacks merit. Without rehearsing what has already been said, the Notice provides, in my view, sufficient particularity in order to know the risk which needs to be ameliorated. How and what steps which need to be undertaken by the Applicant to address the risk is a matter for expert advice.

• [40] The third ground relied upon by the Applicant centres on the application of the National Compliance and Enforcement Policy. It is not necessary to deal with this ground of objection as it has no direct relevance on whether the stay should be issued. In any event, it was accepted that the National Compliance and Enforcement Policy does not have any direct application to the issuing of the Improvement Notice by Inspector Cappelletti.

• [41] The balance of convenience is the course most likely to achieve justice between the parties pending resolution of the substantive hearing, bearing in mind the consequences to each party of the grant, or refusal, of the stay.
• [42] The Applicant contends that it will experience a serious level of prejudice if the stay is not granted: In particular, they argue that:

1. the direction to remedy in the Improvement Notice is uncertain and therefore the Applicant will not know whether any remedial action it takes will be sufficient, overbroad or insufficient.

1. assumes that the direction to remedy is limited to the gantry support posts not being protected against the risk of impact from passing vehicles as is suggested in the Internal Review Decision (but not in the Improvement Notice); and
2. adopts the suggestion of Mr Davis that concrete barriers be placed in between the posts,

then the Applicant will suffer the difficulties namely it will be required to dismantle the entire gantry and remove the site sheds which the gantry currently houses, at considerable cost and delay to the critical path of the Applicant's construction project at the Site.

• [43] Further it is contended that the staying of the Improvement Notice does not have the effect of removing the protections given to workers and the public because regulation 315K(2) of the WHS Regulation remains in force and binding on the Applicant regardless of any stay on the Improvement Notice.

• [44] Whilst that might be so, the current situation presents a potential risk to the public. As submitted by the Respondent the main object of the WHS Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces. This is achieved, in particular by protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from particular types of substances or plant.[12]

• [45] As was observed in Multiplex,[13] in considering the competing rights of each of the parties, the Commission is alive to the purpose of a prohibition notice being to protect workers, and others, at a worksite. The Commission is also mindful of the duties and responsibilities of the respondent as the Regulator of work health and safety in this State. However, those rights and responsibilities are tempered by the mechanism for review established under the WHS Act as exercisable by the Commission.

• [46] I do not accept the submissions of the Applicant as to the prejudice it will apparently suffer should the stay not be granted. I have considered the views expressed by Mr Cunningham at paragraph [45] of his affidavit. However, there is no direct evidence from an engineer or other appropriately qualified person to inform the Commission as to what, if any, remedial work is required to ensure that the gantry supports are compliant with the regulation. The engineering evidence before the Commission suggests that "... vehicular impact loadings have not been specifically catered for in the design process, ...".[14] I accept the argument of the Respondent that staying the notice until the matter is determined sometime in 2021 will only serve to escalate the risk and to some extent frustrate the object of the Act as prescribed in s 3 of the WHS Act.

• [47] I do not accept the argument that the Improvement Notice creates an uncertainty as to what is required by the Applicant. The Notice makes clear that: "The gantry support posts are close to a very busy road system which carries trucks, cars, motor bikes etc. These posts have not been guarded or protected against the risk of impact from passing vehicles, which may lead to failure or collapse of the gantry system." It is apparent the risk to which the Notice is aimed at addressing.

• [48] I have formed the view that the balance of convenience favours the refusal of the application.

• [49] The Applicant submits that the prospect of an abortive appeal arises because the operation of the Improvement Notice remains in force and, as such, the Applicant continues to remain liable to prosecution by Work Health and Safety Queensland until the application for external review is determined.

• [50] The Respondent argues that a decision not to stay the Improvement Notice does not render the external review abortive in any event. They submit that in the "unlikely event" that the Office of the Work Health and Safety Prosecutor elected to prosecute the Applicant for a failure to comply with the Improvement Notice, then a subsequent decision by the Commission to hold the Notice void ab initio would constitute an absolute defence to such a charge.

• [51] In light of my earlier conclusions, it is sufficient to say I am of the view that the risk that the Applicant's appeal will be rendered inutile absent a stay, does not outweigh the detriment which would be caused should a stay be granted.

• [52] I accept that the Applicant has not discharged the requisite onus of establishing that there is a proper basis for the granting of a stay. I am not persuaded that this is an appropriate occasion on which I ought to exercise my discretion to grant a stay. Accordingly, the application is refused.

[1] Person conducting a business or undertaking.

[2] (1985) 2 NSWLR 685.

[3] Ninemia Maritime Corp v Trave GmbH & Co KG ("The Niedersachsen") [1984] 1 All ER 398, 404.

[4] See: Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 at 325 per Gleeson CJ; Frigo v Culhaci [1998] NSWCA 88.

[5] Affidavit of David Cappelletti affirmed 11 December 2020, Exhibit DC1

[7] Affidavit of Michael Cunningham sworn 18 December 2020, [28]-[30].

[9] (1990) CLR 104, [14].

[10] [1966] HCA 21; (1966) 115 CLR 266.

[11] [1984] VicRp 81; [1984] VR 1019.

[12] See: s 3 Work Health and Safety Act 2011.

[13] Multiplex Constructions Pty Ltd v the Regulator under the Work Health and Safety Act 2011 [2018] QIRC 116.

[14] Affidavit of Michael Cunningham sworn 18 December 2020, [43]; Exhibit MC15.