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

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

George v Rockett [1990] HCA 26; (1990) 170 CLR 104

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

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Mr C J Murdoch QC, instructed by Minter Ellison for the applicant

Ms C Hartigan of counsel, instructed directly by the respondent

[1] On 31 May 2018, an inspector from Work Health and Safety Queensland (WHSQ) issued a prohibition notice under s 195 of the Work Health and Safety Act 2018 (the Act) to the applicant, Multiplex Constructions Pty Ltd. In issuing that notice the inspector stated that he reasonably believed that:

... an activity may occur at the workplace that will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard and that this activity is likely to be contravening a provision of [the Act and the Work Health and Safety Regulation 2011].

I direct the person with control over the following activity to stop the activity of: Performing construction work where it is reasonably likely that an object could fall.

[2] The issuing of that notice constitutes a reviewable decision.[1] On 12 June 2018 the applicant filed an application for an internal review of the inspector's decision pursuant to s 224 of the Act.

[3] On 26 June 2018 the internal review confirmed the inspector's decision to issue the prohibition notice. The applicant filed an application for an external review by the Commission of that decision on 20 July 2018 and an amended application on 27 July 2018. An application for a stay of the review decision and the operation of the prohibition notice pending the hearing and determination of the external review was filed on 31 July 2018.

[4] The stay application is resisted by the respondent.[2]

[5] The relevant decision was initially made under section 195 of the Act. The s 195 notice must contain the matters identified in s 196. Section 197 requires compliance with a prohibition notice and imposes a maximum penalty of 1,000 penalty units for failing to do so.

[6] Section 223, together with schedule 2A, establishes which decisions are reviewable decisions for the purposes of the Act; who is eligible to apply for a review of a reviewable decision; and, to which body the external review goes.

[7] Sections 224 through 228 establish, respectively, the process to apply for an internal review; who undertakes the internal review; the time in which the internal review must be conducted; what the internal reviewer may do; what the internal reviewer must do; and, when the decision the subject of the internal review may be stayed.

[8] Section 229 sets out the process for an external review, and is in the following terms:

(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.

[9] Section 229C 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.

[10] Prior to considering the substantive application for a stay, the respondent raised a threshold question as to whether the Commission has the power to stay the prohibition notice.

[11] Counsel for the respondent, Ms Hartigan, submits that s 229C operates:

... with respect to the decision under review. The Commission is not empowered to stay the decision which was the subject of the internal review, that is, the Prohibition Notice. In this matter, the applicant seeks relief which includes a stay of the operation of the Prohibition Notice. The Prohibition Notice is not a decision to which s 229C of the WHS Act applies.

[12] The respondent contends that having regard to s 229A of the Act, it is the internal review decision that the applicant seeks to have reviewed by the Commission and not the prohibition notice below it. The respondent argues that the applicant had the opportunity to incorporate the regulator's refusal of the stay within its application for external review but it failed to do so.

[13] Mr Murdoch QC, counsel for the applicant, argued that the power under s 229C of the Act to stay the operation of the internal reviewer's decision is to secure the effectiveness of the review. His submission, which I accept, is underscored by the principle of construction that all words in a statute have meaning and effect and, by extension, the section must have some work to do.[3] The words "to secure the effectiveness of the review", if they are to be given any meaning, must be read so as to allow the stay of the prohibition notice itself. To read s 229C of the Act in accordance with the respondent's submission would render the section bereft of a large portion of its function.

[14] It seems hard to understand how the effectiveness of the external review could be achieved absent the staying of the prohibition notice which is of itself the subject matter of the review. The effectiveness of the external review would not be protected if it was the case that the only decision capable of being stayed was internal review decision.

[15] Section 229C(2)(a) of the Act allows for a stay to be "given on the conditions the Commission considers appropriate." In my view, subsection (2)(a) affords the Commission the ability to stay the internal review decision with the condition that prohibition notice be also stayed.

[16] The Commission has the power under s 229C of the Act to make the order sought. The Commission must in exercising the discretion conferred by s 229C of the Act, do so judicially.

[17] The principles governing the exercise of a discretionary power to stay were enumerated by the New South Wales Court of Appeal in Alexander v Cambridge Credit Corporation Ltd.[4] Those principles were summarised by the applicant 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.

[18] 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.[5]

[19] The applicant submits that "principles" 3, 4, and 5 summarised above are apposite to the determination of this application. I agree. For convenience, each of 5, 3, and 4 above will be considered in that order below.

[20] The assessment of whether there is an arguable case is conducted to avoid situations where a stay is sought purely to buy time through an otherwise fruitless suit.[6] It is not a matter of pre-judging the substantive application.[7]

[21] 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."[8] It is a less stringent test than requiring proof on the balance of probabilities.[9]

[22] In the current application, and its substantive matter, the applicant identifies five grounds to support its contention that the prohibition notice ought to be set aside. They are:

• No basis for a reasonable belief under s 195(1);
• The notice does not set out how the relevant provision is likely to be contravened;
• The notice does not contain a reasonable direction capable of being understood with certainty;
• The directions to remedy the likely contravention are unclear and therefore incapable of being complied with; and
• The issue of the notice is inconsistent with the National Compliance and Enforcement Policy.

[23] The applicant contends that if read literally, the prohibition notice is unreasonable and what is required of it is unascertainable. The applicant characterises the notice as not containing "a reasonable direction capable of being understood with certainty". The applicant expanded upon this submission by arguing that the prohibition notice lacked particularity.

[24] The absence of particularity in the notice, and whether there ought to have been greater certainty, gives rise to a genuinely arguable case. This is also true of the applicant's submission regarding: the directions to remedy the likely contravention; and, how the relevant provision is likely being contravened.

[25] It is contended by the applicant that the inspector formed his belief on a series of past incidents and past incidents involving sub-contractors. It is submitted that this is particularly so in circumstances where the majority of previous incidents involved: an object failing into an exclusion zone; did not involve any imminent risk of serious injury to any person; and, despite the fact that they were reported to WHSQ, were not reportable incidents under the Act because they did not meet the definition of a "dangerous event". Remedial measures had been taken to prevent the re-occurrence of each previous incident. Further it was argued that WHSQ had not given the applicant any indication that it did not accept the additional controls implemented in relation to the previous incidents and the risk posed by the incident which occurred immediately prior to the issuing of the notice had been ameliorated before the notice issued. In those circumstances, given the High Court's consideration of the term "reasonable belief" in George v Rockett,[10] namely the existence of facts which are sufficient to induce the belief in a reasonable person, it was contended that the inspector was not capable of forming such a belief.

[26] In short, and without speculation on the applicant's prospects of success, I am satisfied that there is an arguable case.

Balance of convenience and competing rights of the parties

[27] The Regulator is not likely to be inconvenienced by the granting of the stay of the decision or the prohibition notice. The granting of the stay of the prohibition notice will not impact on the work of the Regulator. The staying of the prohibition notice is of convenience to the applicant as it removes uncertainty, pending the external review, and a potential work impediment. However, 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. Equally, those rights and responsibilities are tempered by the mechanism for review established under the Act as exercisable by the Commission.

[28] The applicant submits that there is significant prejudice done to it given that a literal construction of the notice might require the cessation of all work where something might fall.

[29] The respondent argues that the staying of the operation of the prohibition notice will have the effect of removing the protection given by the prohibition notice to workers on the site. I disagree. The terms of the prohibition notice are a restatement of the obligations under the Act. If the stay is granted, the applicant is and will continue to be bound by its obligations under the Act.

[30] In weighing that against the rights of the respondent, and noting that the applicant is still required, of course, to comply with its obligations under the Act and its regulations, I am of the opinion that the balance is in favour of a stay.

[31] The prospect of an abortive appeal arises because the operation of the prohibition notice remains in force and, as such, the applicant continues to remain liable to prosecution by WHSQ until the application for external review is determined.

[32] I accept that having regard to the submissions made by the applicant relating to the uncertainty and unreasonableness of the prohibition notice, and the position that the continuing operation of the notice may place the applicant in, I am of the view that the review may prove abortive if the stay is not granted.

[33] I am of the opinion that the applicant has discharged the requisite onus of establishing that there is a proper basis for the granting of a stay. The applicant has established an arguable case and, in my view the balance of convenience, after weighing the various rights of the parties, favours the granting of a stay. Accordingly, I make the following orders:

1. Pursuant to s 229C of the Work Health and Safety Act 2011, the internal review decision dated 26 June 2018 is stayed on the condition that the prohibition notice the subject of the review is also stayed;

1. Pursuant to s 229C(2)(b) of the Work Health and Safety Act 2011, the stay of the internal review decision, and the prohibition notice the subject of the review, will remain in effect until the application for the external review is heard and determined by the Commission.

[1] Work Health and Safety Act 2011 (Qld) s223, sch 2A.

[2] The respondent in this and related applications was described as the Workers' Compensation Regulator. However, proceedings brought under the Work Health and Safety Act 2011 (Qld) are defended by "the regulator under the Work Health and Safety Act 2011". These reasons reflect the appropriate name of the respondent. See: s 152(2) of the Work Health and Safety Act 2011 (Qld).

[3] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 382 [72].

[4] (1985) 2 NSWLR 685.

[5] Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, 694.

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

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

[10] George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 115-116.