SafeWork NSW v Lipman Pty Ltd

Industrial Relations Commission (NSW)|2023-03-20

DECISION

This is an Application for Leave to Appeal and Appeal brought by SafeWork NSW ("SafeWork") against the decision of Commissioner Murphy in Lipman Pty Ltd v SafeWork NSW [2021] NSWIRComm 1088 ("Decision"). In the Decision, the Commissioner upheld an application for external review brought by Lipman Pty Ltd ("Lipman") pursuant to s 229(1) of the Work Health and Safety Act 2011 ("WHS Act"), and revoked the decision of a SafeWork inspector to issue an improvement notice to Lipman.

Background

There is no controversy between the parties as to the factual background to the appeal. At [8] of the Decision, the Commissioner referred to and reproduced in its entirety an "Agreed Statement of Facts" which had been tendered in the proceedings below. It is not necessary that we do the same.

The Decision

The Decision was handed down on 17 November 2021. Commissioner Murphy ordered that the external review be upheld, and that both the decision to issue the Improvement Notice and the internal review decision be revoked.
Before turning to the Commissioner's reasoning, it is convenient to observe that the Improvement Notice was issued purportedly pursuant to s 191 of the WHS Act. That section provides: 191 Issue of improvement notices (1) This section applies if an inspector reasonably believes that a person - (a) is contravening a provision of this Act, or (b) has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated. (2) The inspector may issue an improvement notice requiring the person to - (a) remedy the contravention, or (b) prevent a likely contravention from occurring, or (c) remedy the things or operations causing the contravention or likely contravention.
In the Decision, the Commissioner (at [24]-[26]) discussed the observations of Chief Commissioner Kite in Growthbuilt Pty Ltd v SafeWork NSW [2018] NSWIRComm 1002 ("Growthbuilt") as to the test of "reasonable belief" (albeit in the context of s 195 of the WHS Act). Having done so, Commissioner Murphy observed: "27. I accept that the test of 'reasonable belief' is an objective test. Mr Croke in the Improvement Notice stated, 'I, Jason Croke reasonably believe on 18/03/2021 that you have contravened a provision in circumstances that make it likely that the contravention will continue or be repeated of the Work Health and Safety Act 2011, section 19 and Work Health and Safety Regulation 2017, clause 38'. There are two elements that need to be satisfied in order to form the basis of a 'reasonable belief'. The first element is that the inspector must reasonably believe that Lipman has contravened s 19 of the WHS Act and cl 38 of the WHS Regulation. The second element is that the inspector must reasonably believe that the contravention occurred in circumstances that make it likely that the contravention will continue or be repeated. 28. It is not apparent on the face of the Improvement Notice how it is said that Lipman contravened cl 38 of the WHS Regulation. However, it is sufficiently clear that the alleged contravention by Lipman of s 19 of the WHS Act was a failure to ensure, so far as was reasonably practicable, the health and safety of 'Workers/Other persons' by exposing them to 'a serious risk to their health or safety as the fall arrest/rope access anchor points installed on level 8 have been involved in an incident where they have failed'. Lipman denies that it has contravened the WHS Act or the WHS Regulation. For the reasons that follow, I have found it unnecessary to determine this aspect of ss 191(1)(b) of the WHS Act. 29. I have determined this matter on the basis that, objectively, Mr Croke could not have held a reasonable belief that the contravention occurred in circumstances that make it likely that the contravention will continue or be repeated. I certainly do not hold such a belief. 30. The basis of what Mr Croke claims to be his reasonable belief that the contravention occurred in circumstances that make it likely that the contravention will continue or be repeated, appears to be what is set out at paragraphs 7-18 of his affidavit (at [16] above) which I summarise as follows: (a) anchor points, including a failed anchor point, and ropes were observed on level 8 of the building; (b) the use of abseiling by attaching it to any of the anchor points presented a serious risk to the health and safety of workers; (c) the presence of workers at the site; (d) concern that abseiling work at the site would continue; and (e) Mr Benz's co-worker had been taken to Liverpool police station for questioning but he and/or other workers would be likely to return to the site and attempt to continue the façade work that Mr Benz had been conducting. … 32. The matters which have led me to determine that a reasonable belief could not be held that the contravention occurred in circumstances that make it likely that the contravention will continue or be repeated include: (a) the Prohibition Notice that was issued to Lipman on 18 March 2021(at [6] above); (b) paragraph 58 of the Agreed Statement of Facts which states, 'Lipman took immediate steps to take out of service the FARS System in compliance with the Prohibition Notice' (at [8] above); (c) the two Non-disturbance Notices issued by Mr Estreich on 18 and 24 March 2021 respectively (see paragraphs 59 and 61 of the Agreed Statement of Facts at [8] above); (d) the unchallenged evidence of Mr Holland that he told the SafeWork inspectors on 18 March 2021 that 'the anchor points will be taken out of service and would not be used until they were re-checked and re-certified and we could get an understanding on how the Incident happened' and 'that the rope access system would not be used on that day or in the near future until it was re-checked and certified and we [Lipman] had an understanding on how the Incident happened' (paragraph 14 at [12] above); (e) the unchallenged evidence of Mr Holliday that 'while the prohibition notice was in force Lipman did not engage, or permit, any specialist height access contractors to access or use the installed fall arrest/rope access anchor points across the Site' and 'Both non-disturbance notices prevented access to the level 8 balcony at Site, the area in which Mr Benz was working prior to the Incident and which the abseiling/rope equipment was set up. No other areas on the Site were being used for any other rope access/abseiling works. I verily believe that the Lipman Site team complied with both non-disturbance notices at all times' and 'After the Incident, Lipman took immediate steps to prohibit access and all works (not just abseiling/roof access works) from occurring on level 8 balcony area and all works using the System at the Site' (paragraphs 16, 21 and 22 at [14] above). 33. I accept, without repeating them, the contents of paragraphs 67-72 of the Lipman's Submissions (at [20] above) and paragraphs 24 and 27-30 of the Lipman's Reply Submissions (at [22] above). It follows that I do not reasonably believe that, as at 18 March 2021, Lipman had contravened any provision of the WHS Act or of the WHS Regulation in circumstances that made it likely that the contravention would continue or be repeated (my emphasis). 34. It follows that Lipman's application for external review must succeed." (Emphasis in original)

The conduct of the appeal proceedings

SafeWork filed an Application for Leave to Appeal and Appeal, pursuant to s 187 of the Industrial Relations Act 1996 ("IR Act"), on 7 December 2021. On 17 December 2021 Lipman filed a notice of contention.
On or about 17 January 2022 the Commission received a document titled "Directions Order", signed on behalf of each of SafeWork and Lipman on 14 January 2022, which set out the directions which the parties sought the Commission to make by consent. One of those directions was that the proceedings be listed for hearing in the September 2022 appeal period.
On 17 January 2022 the Chief Commissioner made directions in keeping with those sought by the parties. She directed that the proceedings be listed for hearing on 7 September 2022.
SafeWork was granted leave to file, and filed, an Amended Application for Leave to Appeal and Appeal on 1 June 2022.
On 5 September 2022 Lipman applied to vacate the hearing on 7 September 2022. SafeWork did not oppose that request.
As the parties or their representatives were unavailable during the November 2022 appeal period, the hearing of the appeal was listed on the next available date, being 7 March 2023. The hearing proceeded on that day, but was not concluded. The hearing continued on 20 March 2023.

The appeal

SafeWork's Amended Application for Leave to Appeal and Appeal included the following: "G. Reasons why leave to appeal should be granted: 1. The Decision gives rise to a need for appellate review to assist the administration of the WHS Act by the Appellant, including the legitimate scope for the exercise of the discretion provided by s 191 of the WHS Act. 2. The Decision raises the need in the public interest for clarity relating to the circumstances in which a reasonable belief can be held in relation to contraventions of the WHS Act. 3. The proper scope for the Appellant to issue improvement notices under s 191 of the WHS Act, in conjunction with prohibition notices under s 195 of the WHS Act, requires appellate determination in the public interest and in the interests of health and safety for all workers engaged in work which involves risks of falls from height. H. Amended grounds of the appeal are: 1. The Commissioner erred by applying s 191 of the WHS Act in an incorrectly narrow manner, including by: applying the words 'in circumstances that make it likely that the contravention will continue or be repeated' as requiring an immediate or imminent temporal element; and by requiring an inspector to have regard to what was 'likely' based on what the respondent said it would do. 2. The Commissioner erred by failing to apply the correct test to determining whether the inspector had a reasonable belief that contraventions had occurred in circumstances that made it likely that the contraventions would continue or be repeated, and as a result the Commissioner failed to have regard to relevant matters. 3. The Commissioner erred by having regard to the five matters listed at paragraph [32] of the Decision. 4. The Commissioner erred by failing to have regard to a relevant matter, namely whether a contravention of clause 38 of the Work Health and Safety Regulation 2017 was likely to continue or be repeated. 5. The Commissioner erred in that he failed to have regard to all the relevant facts which amounted to circumstances that made it likely that any contravention by the respondent would continue or be repeated." (Tracking removed)

Notice of contention

In its notice of contention, Lipman contended that the Decision should be affirmed on grounds other than those relied on by Commissioner Murphy. The grounds set out in the notice of contention were as follows: "The Respondent contends that Commissioner Murphy should have found that: i. the objective evidence that was available to Inspector Croke at the time he issued the Improvement Notice No.7-130-EJIEDT (Notice) did not demonstrate any actual contravention of any provision of the Work Health and Safety Act 2011 (NSW) (WHS Act) or the Work Health and Safety Regulation 2017 (NSW) (WHS Regs) on the part of Lipman Pty Ltd; ii. Inspector Croke could not have formed a reasonable belief that Lipman Pty Ltd was contravening s.19(1) of the WHS Act and/or clause 38 of the WHS Regs in light of the circumstances and material that he had available at the time he issued the Notice; iii. the decision of Inspector Croke to issue the Notice was not one that the provisions of s 191(1)(a) of the WHS Act empowered him to do."
We observe that the number "7-130-EJIEDT" is that of the prohibition notice issued by Mr Croke on 18 March 2021 ("Prohibition Notice"), not the Improvement Notice. However, it is apparent that this was an error and that the notice of contention was intended to refer to the Improvement Notice. There was no confusion or concern in this regard arising from the submissions filed by the parties in respect of the notice of contention. We have read the notice of contention accordingly.

The law applying to appeals

Section 188 of the IR Act provides that an appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench. The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.
In Fraser v Commissioner of Fire and Rescue NSW [2022] NSWIRComm 1026 the Full Bench observed: "18. The applicable principles in deciding whether to grant leave are well settled and were summarised in Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 at [10]-[11]. In summary: (1) an appeal under the Act is an appeal in the strict sense, and the Full Bench will only intervene to correct error; (2) leave will not be lightly or automatically granted, unless substantial issues of principle or law are raised, or there are otherwise wider implications for the jurisprudence of the Commission or the proper administration of justice; and (3) where an appeal primarily challenges finding of fact leave will rarely be granted."
If leave to appeal is granted, an appeal to a Full Bench "is not by way of a new hearing": s 191(1) of the IR Act. The Full Bench "cannot merely substitute its decision on the matter but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received": s 191(3).
The Decision involved the exercise by Commissioner Murphy of the discretion conferred on the Commission by s 229(4) of the WHS Act. For the appeal to succeed, it is not enough that the Full Bench might have exercised that discretion differently. SafeWork must show that the Commissioner failed to properly exercise the discretion committed to him: Public Service Association and Professional Officers Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 at [10], citing Mace v Murray (1955) 92 CLR 370; [1955] HCA 2 and House v The King (1936) 55 CLR 499; [1936] HCA 40.

Leave to appeal

SafeWork's written submissions in support of its application for leave to appeal included the following: [1] "4. The appeal raises the following important questions: a. Whether in circumstances where work has stopped following an accident and cannot immediately resume because a prohibition notice and/or a nondisturbance notice have been issued, an inspector has power to issue an improvement notice as to how the work, when it resumes, is to be done; b. Whether as a consequence an inspector, in effect, is required to elect between issuing a prohibition notice or an improvement notice; c. Whether, in determining whether a contravention will be repeated, reliance can be placed on statements made by the person conducting a business or undertaking (PCBU), in this case the respondent, as to whether it intends to take steps that would prevent any contravention of a provision of the WHS Act; and d. The correct test for determining what amounts to sufficient material for an inspector to hold a reasonable belief that there were circumstances that make it likely that the contravention will continue or be repeated. ... 7. The effect of the Commissioner's decision below is that there is no power to issue such an improvement notice in circumstances where the work in question has stopped and objectively it is not expected to immediately resume. That might occur, as here, because a prohibition notice and/or a non-disturbance notice has been issued. 8. If correct, it would mean that an inspector or an HSR is unlikely to be able to issue an improvement notice or PIN respectively, if, in the first case, an inspector has also issued a prohibition notice or, in the second case, the PCBU has independently determined to temporarily stop all work. That is an unlikely interpretation of the powers they are granted, given the purpose of the legislation. 9. If leave to appeal is granted, the appeal will address whether the Commissioner erred in concluding at [29] and [32] that the contravention occurred in circumstances which did not make it likely that the contravention would continue or be repeated. ... 10. Further, it will be contended that the relevant test does not turn on whether the risk in question was one that could be expected to arise imminently or immediately, rather than when work next recommenced." (Emphasis in original, footnote omitted)
It is convenient to consider these contentions in the context of the grounds of appeal.

Grounds 1, 2, 4 and 5

For the reasons which follow, we do not consider that grounds 1, 2, 4 or 5 of the appeal reveal error in the Decision, or raise questions for determination which are of such importance that, in the public interest, leave to appeal should be granted.

Ground 1

Ground 1 of the appeal essentially rests on two premises. First, that the approach adopted by Commissioner Murphy requires the word "likely" as it appears in s 191(1)(b) of the WHS Act to mean "immediately or imminently likely". Second, that the Commissioner erred in having regard to what Lipman's employees had said they would do to address the risk.
The first premise is drawn from the fact that in deciding whether Mr Croke could have formed the requisite "reasonable belief", the Commissioner had regard to the Prohibition Notice and the two non-disturbance notices issued respectively on 18 and 24 March 2021 ("Non-disturbance Notices"). SafeWork submitted that the Commissioner's consideration was, as a result, unreasonably limited to the period for which those notices would operate and failed to have regard to the fact that "unless things were done to change things, the work would continue and the contravention would be repeated". [2]
SafeWork further submitted that, having regard to the Commissioner's approach, "it is difficult to contemplate a circumstance where an improvement notice could be issued at the same time as a prohibition notice". [3] SafeWork also contended (in the context of ground 3 of the appeal, and by reference to [32(c)] of the Decision) that the approach implicit in the Commissioner's reasoning was that an inspector cannot issue an improvement notice while a non-disturbance notice is in place.
It is clear from [32(a)] and [32(c)] of the Decision that Commissioner Murphy had regard to the existence of the Prohibition Notice and the Non-disturbance Notices. However, nothing in the Decision could properly be said to call into question the interaction of an inspector's various powers under the WHS Act, much less that an inspector must choose between issuing a prohibition notice, a non-disturbance notice or an improvement notice.
At most, Commissioner Murphy considered the existence of the Prohibition Notice and the Non-disturbance Notices as relevant to a consideration as to whether it was "likely" that the alleged contravention would continue or be repeated. The combined effect of the position advanced by SafeWork in respect of grounds 1 and 3 of the appeal is that the issuing of such notices is not a relevant consideration for the purposes of the Commission's determination and, further, should it have regard to the issuing of such notices it will fall into error. Such a ground of appeal, in terms, is not advanced by SafeWork.
The arguments advanced by SafeWork in support of ground 1 could only be accepted if the Commissioner had determined that the Prohibition Notice or Non-disturbance Notices of themselves precluded the holding of the reasonable belief required by s 191(1)(b), rather than being factors that may be taken into account. It is apparent on the face of the Decision that the Commissioner made no such determination.
Further, the existence of the Prohibition Notice and Non-disturbance Notices were not the only matters to which the Commissioner had regard. As made clear at [32(d)] of the Decision, the Commissioner took into account what Mr Nelson of Lipman told the inspectors on 18 March 2021. [4] There is nothing in Mr Nelson's evidence, which is set out at [12] of the Decision, to suggest that as at 18 March 2021 Lipman was likely to utilise the rope access system "immediately or imminently".
This leads to the second premise of ground 1, namely the assertion of error in the Commissioner having regard to what Lipman's employees said they would do to address the risk. SafeWork drew our attention to an alleged "observation" of Chief Commissioner Kite in Growthbuilt at [19] "that inspectors are trained not to accept undertakings from PCBUs".
At [19] of Growthbuilt Chief Commissioner Kite made no finding or determination as to the training received by PCBUs, but rather stated the effect of evidence that had been led by the inspector in those proceedings. In the same paragraph, the Chief Commissioner reproduced an extract from the transcript of the proceedings, in which the inspector confirmed that he did take into account the commitments given by the duty holder.
In Growthbuilt the Chief Commissioner further observed: "94. I have referred, in these reasons, to additional inquiries the Inspector may have undertaken. I do not intend by those comments to suggest that the Inspector was required to conduct a full investigation. That would be contrary to the authorities such as George v Rockett, Halley v Kershaw and Essential Energy. The Inspector was not required to satisfy himself to the level of proof of a breach of the Act. Prohibition Notices are intended to prevent potential breaches so that is beyond what is required of him. 95. An inspector is however required to balance the objective information available to him, and is obliged to make reasonable inquiries. If he had attempted to make contact with the engineer and not been able to speak with him, for example, that would provide a different factual matrix than making no attempt to clarify any concerns about an expert engineer's opinion that contradicted his view. A similar point may be made about failing to raise with Mr Radopolous the allegation made by Ace or why the excavator was still in the excavation. The Inspector is not bound by the responses but must take them into account in forming his view."
These passages were reproduced with apparent approval in Watpac Construction Pty Ltd v The Regulator (under the Work Health and Safety Act) [2021] QIRC 375 ("Watpac") at [15] and cited with apparent approval in Visscher v SafeWork NSW (No 3) [2023] NSWSC 317 ("Visscher") at [39].
It is relevant at this point to observe that in the context of ground 3 of the appeal, SafeWork alleged that Commissioner Murphy erred in having regard to what Mr Nelson stated he had told the inspectors on 18 March 2021, as summarised at [32(d)] of the Decision. SafeWork contended that the fact that "an officer or representative of a PCBU following an incident says that they are not going to do something cannot prevent or curb the legitimate exercise by an inspector of the power to issue an improvement notice or prohibition notice or both". [5]
We agree, and see nothing in the Decision that suggests to the contrary. Commissioner Murphy did not determine that an inspector was bound to accept any representations made by, or assurances or undertakings given by, a PCBU. He did no more than regard such representations as relevant to his determination as to whether Mr Croke could, on an objective basis, have formed the requisite reasonable belief. In our view, it would be inconsistent with the "fair and balanced approach" referred to by Chief Commissioner Kite in Growthbuilt to regard it as an error to take into account at all any commitments made by a PCBU.
For these reasons, we accept the following submissions advanced by Lipman: [6] "27. There is nothing in the provisions of section 191(1)(b) of the WHS Act, that limits the approach to the word 'likely' only to matters not related to the conduct of the person the subject of the improvement notice (AS at [28]). The reasonable belief is directed to the likelihood that the person, the subject of the improvement notice, will continue or repeat the alleged contravention. The circumstances relating to the likely conduct of the person to whom the improvement notice is to be issued may therefore be a relevant factor in assessing whether it is likely that the contravention will continue or be repeated. 28. It was therefore proper that the Commissioner have regard to all of the matters that were relevant to a consideration of the circumstances as to whether it was likely that the alleged contravention would be continued or be repeated, including the evidence of the steps taken and proposed to be taken by Lipman in respect to the matter said to be the subject of the alleged contravention."

Ground 2

Ground 2 of the appeal contends that the Commissioner failed to apply the "correct test" to determine whether the inspector held a reasonable belief, and as a result failed to have regard to relevant matters. In support of this ground SafeWork contended: [7] "33. The Commissioner failed to identify the test to be applied to determine the second element. His reasoning appears to proceed on the basis that the second element had to be determined on the basis of objective fact. Certainly, the reasoning does not appear to embrace the notion that all that was required was a reasonable belief that such circumstances existed. 34. Sufficient evidence to hold reasonable belief requires a lesser standard than evidence that is objectively capable of proving the fact beyond reasonable doubt, or on the balance of probabilities: Somerville v Chief Executive of Office of Environment and Heritage. In George v Rockett the High Court 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. 35. The test recently applied by the Queensland IRC is to determine whether there was 'some factual basis or material with probative value which would create in the mind of a reasonable person a suspicion' that the PCBU had committed a contravention, while also leaving room for 'surmise or conjecture'. 36. Had the Commissioner applied the correct test there was ample evidence upon which a finding could have been made that there was a basis for the inspector to hold a reasonable belief that a contravention was likely to continue. ..." (Emphasis in original, footnotes omitted)
We observe that the fact that an alternative finding to that made by the Commissioner "could have been made" on the evidence is not of itself indicative of error.

The "correct test"

In any event, we are not persuaded that SafeWork has demonstrated that the Commissioner failed to apply the "correct test" on the basis set out in its submissions. At [26] of the Decision, the Commissioner reproduced extracts from Growthbuilt in which Chief Commissioner Kite considered the "test of reasonable belief". The correctness of the Chief Commissioner's observations in those extracts was not called into question by the parties.
The approach to the test of "reasonable belief" set out in Growthbuilt was endorsed by the Supreme Court in Visscher at [39]. While each of Growthbuilt and Visscher involved a prohibition notice issued under s 195 of the WHS Act, we consider that Chief Commissioner Kite's observations in Growthbuilt are equally applicable to s 191 of the WHS Act: Simon Anthony Green Wilkeen Pty Ltd t/as Razorback Glass v SafeWork NSW [2018] NSWIRComm 1074 ("Razorback Glass") at [22].
Having considered Growthbuilt, Commissioner Murphy went on to "accept", at [27] of the Decision, that the test of "reasonable belief" is an objective one. The Decision reveals that the Commissioner assessed the evidence led by both SafeWork and Lipman to determine, at [29], "that, objectively, Mr Croke could not have held a reasonable belief that the contravention occurred in circumstances that make it likely that the contravention will continue or be repeated". The formulation of the Commissioner's determination is entirely consistent with the approach described by Chief Commissioner Kite in Growthbuilt.
The statements made by the Commissioner that "I certainly do not hold such a belief" (at [29]) and "I do not reasonably believe that..." (at [33]) suggest that the Commissioner may have approached the matter on the basis that he needed to form a reasonable belief that a contravention had occurred in circumstances that made it likely that the contravention would continue or be repeated, rather than being satisfied that, on an objective basis, Mr Croke could have formed that belief.
The Full Bench raised this issue with Ingmar Taylor SC, who appeared for SafeWork, during the hearing of the appeal. Mr Taylor submitted: [8] "To be generous to the Commissioner, he's doing no more than saying that he doesn't hold that belief and therefore, being a reasonable person, it couldn't have been a belief that Mr Croke reasonably believed, but it's not the correct test for the reasons I identify at the very outcome when I was dealing with what I called the jurisdiction aspect of our submissions. The correct test is not whether the Commissioner would've made the same decision, but whether there was objective material which would allow a reasonable person to form that view. And the fact that with the benefit of much more time, the assistance of counsel, such as Mr Magee, to carefully take someone through the material, that a Commissioner in that circumstance would form a different view is not the correct approach, with respect. The correct approach is, was their objective material which would allow the inspector to form that reasonable belief?"
In the context of the Decision as a whole, we do not consider that the statements of the Commissioner at [29] and [33] of the Decision demonstrate that he failed to adopt the "correct approach". Rather, the "generous" construction of the Decision to which Mr Taylor referred is to be preferred. We say this for two reasons.
First, the Commissioner's determination in the first sentence of [29] is entirely reflective of the approach that SafeWork contends he should have taken. The second sentence can best be read as buttressing the Commissioner's primary determination.
Second, at [33] the Commissioner accepted as correct identified passages of Lipman's submissions. Those submissions included the following: "72. The objective evidence demonstrates that the Inspector had no sound basis to form a reasonable belief that Lipman had contravened a provision in circumstances that made it likely that the contravention would continue or be repeated at the time he issued the Notice, as the issuing of the Prohibition Notice and the Non-disturbance Notice meant that no activity involving the FARS system or the Rope Access system at the Site could be undertaken at the time of the issuing of the Notice nor until such time the Prohibition Notice has been complied with." [9] "24. Further, there was no objective basis for the Inspector to form a reasonable belief that Lipman would not co-operate and comply with the Prohibition Notice and the Non-Disturbance Notice, so as to the permit the formation of a reasonable belief that made it likely that any alleged contravention would continue or be repeated. ... 27. As to paragraph [13] of the Reply Submissions there was no objective basis for the Inspector to form the belief that, in light of the issuance of the Prohibition Notice and Non-disturbance Notice, that façade work was likely to continue at the site. There was nothing in the Inspector's observations of the Site, that would give rise to a reasonable belief that a contravention had occurred in circumstances where it may continue or be repeated." [10] (Emphasis added)
Leaving aside SafeWork's contentions that the Commissioner erred in accepting Lipman's submissions that he have regard to the fact that the Prohibition Notice and Non-disturbance Notices had been issued, which we addressed in respect of ground 1 of the appeal, the approach which Lipman urged the Commissioner to take in determining whether the inspector could have formed the requisite reasonable belief for the purposes of s 191 is consistent with that which SafeWork submits is the "correct approach". In context, the Commissioner's statement at [33] that he had not formed such a reasonable belief is more consistent with him, to adopt Mr Taylor's words, "doing no more than saying that he doesn't hold that belief and therefore, being a reasonable person, it couldn't have been a belief that Mr Croke reasonably believed".
For these reasons, we are not persuaded that the appeal raises as a question for determination the "correct test for determining what amounts to sufficient material for an inspector to hold a reasonable belief that there were circumstances that make it likely that the contravention will continue or be repeated". We regard this as having been established by authorities to which we have referred. We are also not persuaded that error has been identified in the Commissioner's application of that test.

Failure to have regard to a relevant matter

We are also not satisfied that SafeWork has demonstrated that the Commissioner failed to have regard to a relevant matter. In its outline of submissions, SafeWork set out the reasons why Mr Croke asserted that he had formed his belief. [11] Those were drawn, in the main, from Mr Croke's evidence in the proceedings below. That evidence was reproduced at length at [16] of the Decision. It was referred to again at [30], with the Commissioner offering a summary of the evidence. The matters to which SafeWork drew our attention all appear in these passages. It therefore cannot be said that the Commissioner failed to have regard to that evidence.
Rather than identifying error, the effect of SafeWork's submissions in respect of this aspect of ground 2 is to invite the Full Bench to reconsider the evidence, make different factual findings to those made by Commissioner Murphy and substitute its own findings for those of the Commissioner. That is not a course of action which is permissible on an appeal of this nature.

Ground 4

SafeWork asserted that the Commissioner erred by failing to have regard to a relevant matter, namely whether a contravention of cl 38 of the Work Health and Safety Regulation 2017 ("WHS Regulation") was likely to continue or be repeated. It submitted that for the purposes of s 191(1)(b) of the WHS Act, it was sufficient that the inspector reasonably believed that a contravention of either s 19 of the WHS Act or cl 38 of the WHS Regulation was likely to continue, and the Commissioner failed to address at all whether the contravention of cl 38 was one that was likely to continue or be repeated.
It is clear from the Decision that the Commissioner was aware that in issuing the Improvement Notice, Mr Croke was relying on both s 19 of the WHS Act and cl 38 of the WHS Regulation. The Commissioner reproduced cl 38 at [5] of the Decision. It is apparent from [27]-[28] of the Decision, reproduced at [7] above, that the Commissioner was aware of a controversy as to whether Lipman had breached cl 38. He determined that it was not necessary to resolve that controversy based on his determination, at [29], that Mr Croke could not have held a reasonable belief that the contravention occurred in circumstances that make it likely that the contravention would continue or be repeated. In context, the Commissioner's reference to "the contravention" is to be read as a contravention of either the WHS Act or the WHS Regulation.
We are not persuaded that ground 4 discloses error in the Decision.

Ground 5

Ground 5 contends that Commissioner Murphy failed to have regard to "all relevant facts". In its outline of submissions on appeal, SafeWork set out a list of facts to which the Commissioner Murphy allegedly did not have regard, and which "made it 'likely' that any contravention by Lipman would continue or be repeated". [12] On the case advanced by SafeWork, it was not sufficient for the Commissioner to reproduce the Agreed Statement of Facts or the evidence from which the allegedly ignored facts appeared. It was necessary that they be expressly considered. SafeWork submitted that "the failure of the Commissioner to expressly consider [the facts] as part of his determination, combined with an outcome which belied their existence, provides a proper basis to conclude that regard was not had for them". [13]
We are not persuaded that the Commissioner failed to have regard to the facts identified by SafeWork. A proper reading of the Decision reveals that the Commissioner was aware of the cases advanced by each party, and the evidence on which they relied. That the evidence may have supported a conclusion consistent with the case advanced by SafeWork does not of itself mean that a contrary outcome is affected by error.
We similarly do not consider that the outcome of the Decision "belied the existence" of the facts identified by SafeWork. None of those facts, whether individually or collectively, lead inevitably or inexorably to the conclusion that the alleged contravention occurred in circumstances that make it likely that any alleged contravention by Lipman would continue or be repeated. While a different conclusion may have been available on the evidence, the one reached by the Commissioner was not so "manifestly wrong" as to evidence appellable error: see Margaritte Joanne Colefax v Secretary, Department of Education (No. 3) [2019] NSWIRComm 1000 at [69].
For these reasons, and consistent with our observations at [42] above, we accept the following submissions advanced by Lipman, albeit in the context of ground 2: [14] "34. The Commissioner properly had regard to the basis upon which the Inspector claimed he held his reasonable belief. The Commissioner, properly, then had regard to other matters that arose from the evidence before the Commission, and determined that having regard to all of the relevant material he was not satisfied that a reasonable belief could be held on an objective basis that the contravention occurred in circumstances that make it likely that the contravention will continue or be repeated. There is no error demonstrated by such an approach."

Ground 3

SafeWork contended that Commissioner Murphy erred by having regard to the matters set out at [32] of the Decision.
There is a degree of overlap between this ground and grounds 1 and 2. In that regard, insofar as SafeWork alleged error in respect of [32(a)] we repeat our observations at [25]-[29] above. In relation to SafeWork's challenge to [32(d)], we repeat the observations at [31]-[37] above.
SafeWork's challenge in respect of [32(c)] is in part addressed at [25]-[29] above. There are, however, two further matters arising.
First, SafeWork submitted that there was no evidence that Mr Croke was aware, prior to issuing the Improvement Notice on 18 March 2021, that Mr Estreich had issued a non-disturbance notice on the same day. As a result, the Commissioner erred in relying on its existence to determine whether, on an objective basis, Mr Croke could have formed the requisite reasonable belief for the purposes of s 191(1)(b) of the WHS Act.
Lipman submitted that as Messrs Croke and Estreich were two of four SafeWork inspectors who attended the site after the incident that day, it could be inferred that Mr Croke was aware that the non-disturbance notice had been issued. That would be a reasonable inference. Further, even were we to allow for the possibility that SafeWork inspectors who attend an incident in company with each other do not inform each other, or enquire of each other, of the actions that each takes, we consider that "reasonable enquiries" of the kind referred to in Growthbuilt would contemplate an inspector making such enquiries prior to invoking their powers under s 191.
However, we accept that there is no evidence that Mr Croke was aware of the non-disturbance notice issued on 18 March 2021 before he issued the Improvement Notice. In the absence of such evidence, we accept the position advanced by SafeWork.
Second, SafeWork submitted, and we accept, that in determining whether Mr Croke had the requisite reasonable belief, regard can only be had to circumstances that existed at the time the Improvement Notice was issued. It is clear from [32(c)] that the Commissioner had regard to the second non-disclosure notice issued to Lipman by Mr Estreich on 24 March 2021. That cannot have been a relevant consideration for the question requiring determination by the Commissioner. In having regard to the second non-disturbance notice to "determine that a reasonable belief could not be held that the contravention occurred in circumstances that make it likely that the contravention will continue or be repeated" we find that the Commissioner erred.
The same conclusion arises in respect of the matters to which the Commissioner had regard as set out at [32(b)] and [32(e)]. Those paragraphs reference evidence of steps taken by Lipman to comply with the Prohibition Notice and the Non-disturbance Notices. Based on the evidence as a whole, these steps must (at least for the most part) have been taken after the Improvement Notice was issued. They cannot logically inform what Mr Croke might reasonably have believed at the time of issuing the Improvement Notice. In having regard to the matters set out at [32(b)] and [32(e)] of the Decision, the Commissioner fell into error.
The errors we have identified immediately above might warrant the granting of leave to correct them and for the proper administration of justice: Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited (2003) 128 IR 37; [2003] NSWIRComm 211 at [78]; Paula Lee and Ausgrid (No 6) [2013] NSWIRComm 62 at [42]. However, we have determined not to grant leave for the reasons which follow.
First, and contrary to SafeWork's submissions on leave, we do not see that the appeal raises any question as to the "correct test for determining what amounts to sufficient material for an inspector to hold a reasonable belief". In our view, that test has been sufficiently settled by Growthbuilt, Watpac, Visscher and Razorback Glass.
Second, the Improvement Notice contained a statement by Mr Croke to the effect that he reasonably believed on 18 March 2021 that Lipman had contravened s 19 of the WHS Act and cl 38 of the WHS Regulation, in circumstances that make it likely that the contravention will continue or be repeated. The contravention was described in these terms: "Workers/Other persons are exposed to a serious risk to their health or safety as the fall arrest/rope access anchor points installed on level 8 have been involved in an incident where they have failed."
The Prohibition Notice contained a statement by Mr Croke that he held a reasonable belief 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 imminent exposure to a hazard, and that this activity is likely to contravene s 19 of the WHS Act and cl 213 of the WHS Regulation. The basis for the inspector's belief was in the same terms as the description of the contravention in the Improvement Notice.
We recognise that the steps which the Prohibition Notice required Lipman to take were different to those required by the Improvement Notice. In broad terms, the Prohibition Notice was directed towards ensuring the integrity of fall arrest/rope access anchor points across the site, while the Improvement Notice was directed more to a review of systems of work and control measures.
That said, the basis on which Mr Croke identified a contravention of the WHS Act and WHS Regulation for the purposes of the Improvement Notice concerned the failure of the anchor points on level 8, which was in identical terms to the description of the contravention in the Prohibition Notice. It followed that addressing that risk through the Prohibition Notice would necessarily remove the basis for the concern on which the Improvement Notice had been issued.
Bruce Hodgkinson SC, who appeared for Lipman, submitted on the appeal: "So he's identified the failure of the anchor points as the contravention. And that becomes important when you start talking as we will in a moment about s 38 [sic] and the like. He has specifically said, it's not something to do with wider systems. It's not something to do with other systems. It's the failure of the anchor points, that's the contravention he's identified. And that's then what gives him the basis in 191(2) to deal with the terms of an improvement notice. [15] ... Can I then go to what he's described in his prohibition notice as the basis for the inspector's belief? 'Workers or other persons are exposed to a serious risk to their health or safety as the fall arrest rope access anchor points installed on level 8 have been involved in an accident where they have failed'. Let's pause there. We've seen those words. It's precisely the same formulation that he utilised for his contravention in the improvement notice. So, he's directed this prohibition notice to precisely the same circumstances. But he can't decide to just withdraw this prohibition notice. For it to be withdrawn once it's issued, in accordance with s 195, he has to be satisfied that the matters that give or will give rise to the risk have been remedied. Now, that means he has to be satisfied, in accordance with this notice, that the problem with the anchor points has been remedied. And that's the only circumstance in which he can now withdraw them or complete the notice as the only circumstance in which, by creating that satisfaction in the inspector, there can be compliance with the prohibition notice." [16]
Having regard to these considerations, to the extent that we have found error in the Decision, we consider that there is no or insufficient utility in granting leave to appeal: see Wei Fen Xian and Rail Corporation New South Wales [2010] NSWIRComm 46 at [23]. We accept the following submissions advanced by Lipman: [17] "9. It is not in dispute, that Lipman took actions to comply with the Prohibition Notice issued by Inspector Croke on 18 March 2021 and that on 7 May 2021 Inspector Croke confirmed that Lipman had complied with the requirements of the Prohibition Notice. It is therefore evident that as at 7 May 2021 Inspector Croke was satisfied that the measures required to be taken by Lipman to eliminate or minimise the risk to the health and safety of workers/other persons relating to the fall arrest/rope access points installed on level 8 had been taken. Relevantly, these included: a. You must cease the use of all installed fall arrest/rope access anchor points across the site. b. You must ensure that all fall arrest/rope anchor access points being used at the workplace are inspected and load tested in accordance with 1891.4 by a competent person to ensure they are in a safe condition. c. You must have a competent person assess all anchor points and provide a Load Test Certificate to verify the safety integrity of each. d. When this direction has been completed contact the inspector who issued this notice who will determine compliance. 10. Consequently, even if the Appellant were successful in demonstrating some error on the part of the Commissioner in the Decision, at best the Commissioner's decision would be quashed, which would have the effect of reinstating the Improvement Notice. In circumstances where the Improvement Notice applies to the 'installed fall arrest/rope access anchor points' across the site, including on level 8, as they were at the time of the issuing of the Improvement Notice, and prior to compliance with the Prohibition Notice, the reinstatement of the Improvement Notice would apply to…concerns that are no longer relevant. 11. For the reasons set out above, there would be no utility, let alone important public interest matters, that arise from the appeal." (Footnotes omitted)

Notice of contention

As we have determined not to grant leave to appeal, it is not necessary to deal with Lipman's notice of contention.

Endnotes

Appellant's Submission on the Question of Leave to Appeal, 20 May 2022
Tcpt, 20 March 2023, p 28(20-22)
Appellant's Outline of Submissions, 20 May 2022 at par 25
It was common ground that the reference at [32(b)] to "Mr Holland" was an error and, consistent with [12] of the Decision, should have referred to "Mr Nelson"
Appellant's Outline of Submissions, 20 May 2022 at par 44
Outline of the Respondent's Submissions in respect of the Appeal, 11 July 2022
Appellant's Outline of Submissions, 20 May 2022
Tcpt, 7 March 2023, p 29(33-45)
Appeal Book p 1024, reproduced in the Decision at [20]
Appeal Book p 1050, reproduced in the Decision at [22]
Appellant's Outline of Submissions, 20 May 2022 at par 36
Appellant's Outline of Submissions, 20 May 2022 at par 48
Appellant's Outline of Submissions in Reply, 16 August 2022 at par 61
Outline of the Respondent's Submissions in respect of the Appeal, 11 July 2022
Tcpt, 7 March 2023 at p 52(17-22)
ibid. at p 54(7-24)
Respondent's Submissions on the Question of Leave to Appeal, 11 July 2022 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 April 2023

Work Health and Safety Regulation 2017(NSW)

At a glance

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Decision date

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Judgment (18 paragraphs)

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Legislation Cited (2)

Cases Cited (16)

Cited By (4)