The Secretary of the Department of Education, acting in their capacity as such v SafeWork NSW [2025] NSWIRComm 1029

1. Notice 7-476196-1 states that Mr Charman "reasonably believed" on 23 April 2024 that the Department was contravening s 19 of the WHS Act and cl 55D of the WHS Regulation (purportedly within the meaning of s 191(1)(a) of the WHS Act) as follows:

"Workers are exposed to a risk to their health and safety from inadequate systems of work to eliminate or minimise cumulative exposure to traumatic events/materials in the workplace from the task of reviewing CCTV footage of student incidents of violence and aggression.

For example, a small cohort of workers (Senior Executive team and SASS worker) (sic) are responsible for reviewing CCTV footage of student incident of violence (sic) and aggression with inadequate systems in place for monitoring and managing a worker's exposure to this traumatic CCTV material."

1. The matter was listed for hearing on 1 April 2025 (primary hearing). The decision remains part-heard with final submissions yet to be delivered.
2. SafeWork seeks leave to reopen its case in these proceedings for the purpose of adducing further evidence from Mr Gerard McDonell, a SafeWork Inspector (application). The Department opposes the application.
3. At the primary hearing, Mr Charman was asked whether he had reviewed the Department's policies and procedures presented in Ms Sarah Jean Godwin's evidence. Ms Godwin occupies the role of Risk and Operational Compliance in Health, Safety and Staff Wellbeing Directorate of the Department. The Commission further asked Mr Charman if he could express any view as to whether or not those documents presented by Ms Godwin demonstrated compliance with the Department's obligations under the WHS Act. Mr Charman responded that he had not fully read the documents presented by Ms Godwin and therefore he was not in a position to assist the Commission with the issue. SafeWork did not otherwise adduce evidence that addressed this question.
4. At the conclusion of the primary hearing, the matter was listed for mention on 24 April 2025. At the mention, SafeWork foreshadowed that they would be making an application to reopen their case and sought additional time to file the evidence it would seek to adduce if its application was successful.
5. SafeWork filed submissions in support of its application and an affidavit of Gerard McDonell affirmed and filed on 8 May 2025. On 23 May 2025, the Department filed two sets of submissions in reply to SafeWork's submissions. Each were filed separately in respect of the two matters but were otherwise identical. The application was listed for hearing yesterday, 27 May 2025. At the conclusion of the parties' submissions, I stood the matter down until today to consider the parties submissions before delivering the Commission's decision ex tempore[1].
6. I have decided for the reasons that follow to reject SafeWork's application to reopen its evidentiary case.

1. In support of the application to reopen its case, SafeWork has filed an affidavit of Mr Gerard McDonell, SafeWork Inspector dated 8 May 2025 which constitutes the further evidence that SafeWork intends to adduce if leave is granted to do so.
2. SafeWork summarised the proposed evidence of Mr McDonell in the following way in its submissions in the application:

"13. Amongst other things, Mr McDonell deposes that he is a qualified psychologist. He has been an Assistant State Inspector Psychosocial Health and Safety with SafeWork since April 2023. He is also a former Senior Wellbeing Advisor employed by the Department from 2016 to 2023. He deposes that he was asked by his manager on 10 April 2025 whether he could assist in the matter before the Commission, and that he had no prior involvement in this matter.

14. His affidavit then sets out he was provided with a number of documents filed in the proceedings, including the affidavits of Ms Godwin and the entire contents of Exhibit SG-1, and that he read through these documents. Mr McDonell then deposes to a lengthy and comprehensive analysis of the contents of Ms Godwin's affidavits and the Department's policies and procedures presented in Exhibit SG-1. He deposes to his assessment and opinion that the Department's policies and procedures do not provide an adequate risk management framework or process for controlling the risks identified in each of the two improvement notices. He explains in his affidavit the reasons for his assessment and opinion in this regard, including by reference to guidance material and literature reports in the areas of psychosocial health and safety relevant to these proceedings.

15. Ultimately, based on his review of the Department's policies and procedures as well as his training, experience and qualifications in this area, Mr McDonell deposes as to why he says that the correct outcome in this matter is to confirm each of the two improvement notices."

1. Neither the Industrial Relations Act 1996 (NSW) (IR Act), nor the Uniform Civil Procedure Rules 2005 (UCPR) contain a specific provision which deals with the re-opening of a party's case. The UCPR and the IR Act do, however, confer upon the Commission a general discretion as to the conduct of proceedings. Rule 2.1 provides:

"The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient... for the just, quick and cheap disposal of the proceedings."

"162 Procedure generally

(1) The Commission may, subject to this Act, determine its own procedure.

(2) The Commission -

(a) is to act as quickly as is practicable, and

....

(g) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement)"

"163 Rules of evidence and legal formality

(1) The Commission -

(a) is not bound to act in a formal manner, and

(b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just, and

(c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms."

1. I am satisfied that the Commission has power derived from the IR Act and the UCPR, to permit SafeWork to reopen its case and adduce the additional evidence it seeks to rely on.
2. In applying the IR Act and UCPR, and exercising the Commission's powers, the Commission is obliged to give effect to the overriding purpose of the Civil Procedure Act 2005 (NSW) (CPA) and the UCPR, namely, to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56 of the CPA.
3. The Department's submissions included a summary of the relevant provision of the CPA as follows:

"4. Sections 162, 163 and 175 of the I_ndustrial Relations Act 1996_ (NSW) (IR Act) and sections 58, 61 and 62 of the Civil Procedure Act 2005 (NSW) (CPA) permit the Commission to make case management orders in certain circumstances and for the achievement of certain statutory objectives.

5. Section 62 of the CPA relevantly provides that the Commission may have regard to the following matters in making orders regarding the conduct of proceedings before it:

(a) the subject-matter, and the complexity or simplicity, of the case,

(b) the number of witnesses to be called,

(c) the volume and character of the evidence to be led,

(d) the need to place a reasonable limit on the time allowed for any hearing,

(e) the efficient administration of the Commission's lists,

(f) the interests of parties to other proceedings before the Commission,

(g) the costs that are likely to be incurred by the parties compared with the quantum of the subject-matter in dispute, and

(h) the Commission's estimate of the length of the hearing.

6. Sections 58 and 59 of the CPA condition the exercise of the powers and discretion conferred upon the Commission by section 62.

7. Section 58 requires the Commission to act in accordance with the dictates of justice when making orders under section 62 and that the Commission must, for the purpose of determining what are the dictates of justice in a particular case, have regard to the provisions of sections 56 and 57 and may have regard to the following matters to the extent to which it considers them relevant:

(a) the degree of difficulty or complexity to which the issues in the proceedings give rise,

(b) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,

(c) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,

(d) the degree to which the respective parties have fulfilled their duties under section 56(3) of the CPA,

(e) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,

(f) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,

(g) such other matters as the court considers relevant in the circumstances of the case.

8. Section 56(1) of the CPA identifies the overriding purpose of the CPA as being the just, quick and cheap resolution of the real issues in the proceedings and section 56(2) requires the Commission to seek to give effect to that purpose when it exercises any power given to it by the CPA and when it interprets any provision of that Act.

9. Section 57 relates to the objects of case management and provides that, for the purpose of furthering the overriding purpose referred to in section 56(1), the substantive proceedings are to be managed having regard to the following objects:

(a) the just determination of the proceedings,

(b) the efficient disposal of the business of the court,

(c) the efficient use of available judicial and administrative resources,

(d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties."

1. The power to allow a party to reopen their case is a discretionary one.
2. In Gaskin v Ollerenshaw [2010] NSWSC 788, Garling J outlined the principles for reopening a case in this way:

"19 The High Court of Australia has held that in considering whether a case should be reopened before judgment is delivered, it is relevant to consider whether there was a deliberate decision made not to call the evidence during the trial. If such a decision was not made, the primary consideration should be whether the reopening of the case would cause embarrassment or prejudice to the other side: Smith v NSW Bar Association (No 2) [1992] HCA 36; (1992) 176 CLR 256 at 266 - 267 per Brennan, Dawson, Toohey and Gaudron JJ.

20 The particular considerations referred to by the High Court of Australia in Smith are part of the overall question of whether it is in the interests of justice to grant the application and permit the additional evidence: see Urban Transit Authority v Nweiser (1982) 28 NSWLR 471 at 478; Tszyu v Fightvision Pty Ltd (1998) 47 NSWLR 473 at [154]; VAW (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297; (2003) 58 NSWLR 631 at [142] - [144] per Beazley JA; Wilkinson v Daly [2004] NSWCA 331 at [5] per Handley JA.

21 A clear exposition of the appropriate principles for the exercise of the discretion can be found in the judgment of Clarke JA (with whom Mahoney and Meagher JJA agreed) in Urban Transport Authority of NSW v Nweiser supra, at 478:

'The principle which should guide the court in determining whether to grant an application for leave to reopen is whether the interests of justice are better served by allowing or rejecting the application as the case may be. No doubt it is relevant to take account of a number of matters such as likely prejudice to the party resisting the application and the reasons why the evidence was not led in the first place ...'

22 Whilst it is correct to note that this authority was dealing with the statutory regime which preceded the CPA and the UCPR, it nevertheless remains the appropriate authority by which I should determine this application. As indicated earlier, it is necessary to keep in mind the overriding purpose determined by s 56 of the CPA."

1. Garling J referred to the decision in Australian Securities and Investments Commission v Rich & Ors [2006] NSWSC 826; 235 ALR 587 at [18], where Austin J noted some of the factors which may be relevant in considering whether to permit a party to adduce further evidence after it has closed its case. That list is instructive and includes:

"(a) the nature of the proceeding;

(b) whether the occasion for calling the further evidence ought reasonably to have been foreseen;

(c) the consideration of fairness that the defendant is entitled to know all of the evidence he has to meet in taking forensic decisions as to cross-examination, and the nature and extent of the evidence he will himself adduce on the matters in question;

(d) the extent to which the plaintiff has embarked upon calling evidence on the issue in question in its case in chief;

(e) the importance of the issue on which the further evidence is sought to be adduced to the pleaded issues in the case;

(f) the degree of relevance and probative value of the further evidence sought to be adduced and its potential to involve an undue waste of time;

(g) the prejudice to the defendant in terms of delay in the completion of the proceeding and the consequential costs;

(h) the public interest in the timely conclusion of litigation; and

(i) what explanation is offered by the plaintiff for not having called the evidence in chief."

1. I apply these principles in deciding whether to exercise the Commission's discretion in favour of SafeWork's application to reopen its case.

1. SafeWork seeks to reopen its evidentiary case to put before the Commission evidence as to the status of the Department's compliance with s 19 of the WHS Act, with reference to the Department's evidence of Ms Godwin. SafeWork did not adduce any evidence in chief on this question, instead focusing on whether Mr Charman held the relevant "reasonable belief" at the time he issued the INs.
2. The issue on which the further evidence is sought to be adduced is important. The question of whether the Department is currently complying with s 19 of the WHS Act will be informative of the Commission's discretion to confirm, vary or revoke the decision concerned. It is particularly relevant in this case, given not all the information relied upon by the Department about its processes and procedures it has in place relating to the relevant risks were before Mr Charman when he made his decision to issue the INs.
3. Evidence from SafeWork with respect to whether the Department is currently complying with the WHS Act would help the Commission in performing its statutory task. The probative value of the proposed evidence, assuming it is accepted, is high in the Commission's decision of how to exercise its discretion. This is a very relevant consideration in the exercise of my discretion in determining this application. This is a separate question to whether the proposed evidence will be subject to valid objections, its value diminished by cross-examination and what weight it will be given against the Department's reply evidence.
4. SafeWork should have foreseen the need to adduce the evidence before the hearing. SafeWork was a party in Chit Chit Than v SafeWork NSW & Anor [2023] NSWIRComm 1122 ("Chit Chit Than") where the nature of the review jurisdiction was considered at length and the relevance of the PCBU's (person conducting a business or undertaking) current state of compliance with the WHS Act explained. Counsel in the current proceedings was counsel in Chit Chit Than. Further, the relevant aspect of that decision was referred to in the earlier interlocutory decision in the matters, The Secretary of the Department of Education, acting in their capacity as such v SafeWork NSW [2025] NSWIRComm 1009 (Interlocutory decision), where I made the following observations in respect of the nature of the proceedings at [26]-[28]:

"In Chit Chit Than v SafeWork NSW & Anor [2023] NSWIRComm 1122 the nature of the Commission's jurisdiction in external review proceeding was considered at length. At [48]-[49] the following observations were made:

'An external review under s 229 of the WHS Act is a merits review, which requires the Commission to determine the correct and preferable decision standing in the shoes of the relevant decision-maker (in this case, Ms Cocks, the internal reviewer): Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch (on behalf of its member Mick Amarasinghe) and WorkCover Authority of New South Wales [2012] NSWIRComm 143 at [50]; NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4; (2016) 257 IR 467 ("Rural Fire Service") at [70]; Sydney Trains v SafeWork NSW [2017] NSWIRComm 1009; (2017) 266 IR 276 at [28] ("Sydney Trains"); Transport Workers' Union of Australia, New South Wales v SafeWork NSW [2022] NSWIRComm 1050 ("TWU") at [44]. Thus, in this matter, the Commission is required to decide whether the cancellation decision of Inspector Farmer should be confirmed, varied, or set aside and substitute another decision that the Commission considers appropriate: s 226(2).

The Commission conducts a hearing de novo: a fresh hearing, with the capacity to receive evidence that was not before the original decision-maker: Sydney Trains at [16]; Rural Fire Service at [68]. The Commission's powers under ss 162 and 163 of the [IR Act] apply.'

Further, after considering the relevance of the PCBU's current circumstances in the review proceedings, the Commission concluded at [93]:

"In summary, for the forgoing reasons, the Commission can take into account the contemporary factual circumstances in conducting the review. The circumstances as they existed at the time the [Provisional Improvement Notice ("PIN")] was issued are relevant to the determination of whether the [Health and Safety Representative ("HSR")] had jurisdiction to issue the PIN at all. The Commission should exercise caution where the review process is being utilised for the purposes of expunging an otherwise validly issued PIN on the basis of steps subsequently taken to comply with it. The legislature has not created the review jurisdiction for the purposes of facilitating a PCBU's desire to "restore its reputation" for tendering purposes or vindicate the actions of an HSR in issuing a PIN at a particular point of time. The purpose of the legislation is to create safe workplaces. Where, as in this case, a review is sought in respect of a decision to cancel a PIN issued by an HSR, there is no reason why the Commission would exercise caution in considering steps taken both by SafeWork in making recommendations and issuing an IN upon the PCBU; and the actions of the PCBU to improve health and safety, in deciding whether to confirm, vary or revoke the decision on review."

Thus, the PCBU, in this case the Department, is prima facie permitted to tender any evidence in the proceedings which is relevant to the Commission's discretion to confirm, vary, or revoke the INs. The Commission is not confined to only considering the information that was before the relevant decision-makers in determining how to exercise its discretion. Thus, evidence of the contemporary factual circumstances prevailing within the Department, and/or steps taken since the IN has been issued may be relevant."

(footnote removed)

1. The Department and SafeWork referred to the de novo nature of the Commission's jurisdiction and the decision in Chit Chit Than in their submissions filed ahead of the hearing of these matters. However, I agree with SafeWork that the Department's case was primarily focused on the issue of whether Mr Charman held the requisite reasonable belief at the time he issued the INs, not the exercise of the Commission's discretion to confirm, vary or revoke the INs if he did have jurisdiction to do so. However, this does not explain SafeWork's decision not to adduce the evidence relevant to the exercise of discretion to confirm, vary or revoke the INs in the ordinary course of the proceedings.
2. During the hearing of the application yesterday, there was an exchange between the Bench and SafeWork in respect of the issue of which party bore the onus in respect of the decision to confirm, vary or revoke the INs. In NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4, the Commission made the following observations with respect to the nature of review proceedings at [67]-[69]:

"The Commission is empowered to confirm, vary or revoke the decision concerned. I note the distinction between s 226(2) and s 229(4). The internal reviewer is empowered to set aside the decision (which equates to revocation) and substitute an appropriate decision. That last aspect is not expressly included in s 229(4). A question arises whether that is an important distinction. It may be that it is an indication that the Commission is not intended to substitute what it considers is the right, preferable or more appropriate decision. But that is inconsistent with the power to vary. It seems odd that the Commission could vary the decision and yet not substitute its conclusion as to what is preferable. What otherwise is the point of variation?

The Commission is, generally speaking, an arbitral tribunal. The general functions of the Commission specified in s 146 of the IR Act, for the most part, are undertaken by the Commission hearing the parties and, if conciliation is not successful, determining the issues which divide them. It is true that the Commission does have an inquisitorial role under s 146(d) but that is an exceptional role undertaken on reference from the Minister. The Commission of course has power to compel attendance and production of evidence but again that is usually exercised in an arbitral context with parties presenting their respective cases - as envisaged in s 162(2)(c) of the IR Act. Similarly the Commission's capacity to move on its own initiative to inquire into any industrial matter(s 162(2)(j)) is a facilitative power to resolve industrial issues.

The Commission's decision on the review would also be subject to appeal by leave of a Full Bench. An appeal is not available from a report on a Ministerial reference. That is another indication that the nature of the review is a merits review intended to be undertaken in an arbitral not an inquisitorial context."

1. I agree with these observations and note that it is for the parties to put before the Commission evidence relevant to the exercise of the Commission's discretion to confirm, vary or revoke the INs.
2. SafeWork's acknowledged in its submissions it could have obtained the additional evidence of Mr McDonell at an earlier stage in the proceedings. SafeWork, showed candour before the Commission, acknowledging that it had proceeded on an incomplete evidentiary basis, as the issue had "fallen through the cracks." However, SafeWork has not provided the Commission with an acceptable explanation for this omission, where it now concedes it is central to the Commission's task pursuant to s 229 of the WHS Act. SafeWork's submissions referred to Mr Charman's evidence as referred to above at [6] stating that it was not precisely foreseen that these issues would arise until Mr Charman gave his answers to these questions.
3. It is inexplicable why SafeWork would not anticipate the issue of current compliance in these proceedings. I reject the suggestion by counsel for SafeWork that the regulator had insufficient time to understand and apply the jurisprudence in Chit Chit Than. As a party to the proceedings, a model litigant and regulator, SafeWork was obliged to come to understand and apply the decision immediately.
4. If the application is dismissed, the prejudice to SafeWork is that it will not be entitled to rely upon evidence which it submits, and I accept, is highly relevant and probative of a central issue in the proceedings. This would leave the Commission in the position of needing to decide, in the absence of evidence from SafeWork, whether the Department is currently complying with its work health and safety obligations.
5. Although I am yet to hear the parties on this issue, I anticipate that the absence of this evidence may be a proper reason upon which the Commission would set the INs aside in the substantive proceeding. This will leave unresolved the significant issue in dispute between the parties. SafeWork's position is that the outcome of these proceedings is important to the ongoing health and safety of workers. This is disputed by the Department. I accept that the subject matter of the proceedings is important. However, I am not persuaded that the refusal of this application necessarily results in a serous injustice to SafeWork. The parties agreed that the setting aside of the INs would not preclude SafeWork from reinvestigating the matters the subject of the INs, consulting with the Department on it preliminary view of its current state of compliance, before deciding whether to reissue other INs or take some other enforcement action consistent with its practices and policies.
6. I accept SafeWork's submission that this outcome may result in the waste of time and resources expended in the proceedings to date, but that does not make it an injustice. Any such inefficiency would be a direct consequence of SafeWork's own procedural oversight and must be balanced against the unfairness of allowing it to reopen its case at the expense of fairness, finality and the Department's right to a properly conducted hearing. This is a predicament of SafeWork's own design - akin to returning to a finished play with forgotten lines, hoping the curtain might rise again.
7. The Department will be prejudiced if the application to reopen is successful in terms of costs and delay. It is almost a year since the INs were originally issued and the applications filed in the Commission. There will be a delay in the finalisation of proceedings if the application is granted. The impact on the Department of allowing SafeWork to reopen is a relevant consideration. In preparing its case in reply, the Department is entitled to know all the evidence it must meet in taking forensic decisions as to cross-examination, and the nature and extent of the evidence it was required to adduce on the matters in question.
8. SafeWork seeks to rely upon the evidence of Mr McDonell as an expert. The Department has indicated its intention to object to the admissibility of his evidence, including on the basis that he has not confirmed he agrees to be bound by the expert witness Code of Conduct, nor has he included his resume as an annexure. In response to the Department's anticipated objections, SafeWork submitted that the Commission is not bound by the rules of evidence. However, the Commission must still act consistent with the equity, good conscious and substantial merits of the case. Now is not the occasion to finally resolve this contention. However, what these anticipated objections point to is that if SafeWork's case is reopened, the admission of the evidence will be contentious and likely to take more Court time than might otherwise be the case.
9. If SafeWork's application to reopen in successful, the parties agree the Department must be given an opportunity to adduce evidence in reply. I agree with SafeWork that the Department will not be prejudiced from an evidentiary perspective in that it will have an opportunity to test the proposed evidence and put on its own. The Department has sought four weeks to do so. The Department requires Mr McDonell for cross-examination. SafeWork may seek to cross-examine any witness whom the Department calls to give evidence in reply. Given the contentious nature of the evidence, there will need to be at least another day allocated to the matters for the purposes of receiving evidence. There will be delay in receiving the parties' final submissions and ultimately the substantive decision. The public interest in finality is important in litigation. I accept SafeWork's submission that there would have been greater prejudice had the application been made after final submissions were delivered. I am also cognisant of the fact that the operation of the INs is stayed in these matters. However, there will still be prejudice caused by the delay as I have tried best to anticipate and explain.
10. The prejudice resulting from the delay should not be evaluated without simultaneously considering the other delays that have transpired during these proceedings. In the Interlocutory decision, I made the following observation at [67]:

"Twice during these proceedings, the Commission has been required to adjourn proceedings due to late applications by the parties concerning interlocutory matters. These delays have resulted in a postponement of the ultimate resolution of the proceedings, as well as increased costs for the parties and a waste of the Commission's time and resources. These are costs incurred by the public purse. In addition, the Commission was required to list the matter the day before the first hearing day (adjourned to allow the Preliminary Issues to be determined) to resolve an application for a witness to appear virtually, due to SafeWork's failure to respond to correspondence from the Registry within the requested timeframe on its position with respect to the application. If it is indeed necessary for the parties to litigate this matter, having exhausted the processes outlined in the Guidelines to avoid this, it is expected that the parties will take all reasonable steps to conduct the proceedings efficiently and in accordance with their model litigant obligations."

1. Both parties complained about the other's conduct in the proceedings and contributions to the delays in the matters in this application. The trajectory of these proceedings is befitting of the description of an omnishambles. SafeWork bears the onus to persuade the Commission that the indulgence it seeks ought to be given. It is not a tit for tat situation where bad conduct proven by SafeWork in respect of the Department bolsters its application in for the indulgence it seeks.
2. It is relevant that this is not the first time in these proceeding that SafeWork has caused delay and the incurring of costs without proper explanation. SafeWork sought a late adjournment of a notice of motion in these proceedings as I set out in the Interlocutory decision at [43]-[50]. In summary, SafeWork informed the Commission of its intention to seek an adjournment of the hearing of its Notice of Motion seeking to be excused from the production of certain documents by email at 8:15 pm the day prior to the listing, so that it could obtain advice from the Crown Solicitors Office on a potential claim for Public Interest Immunity. There was no reasonable explanation provided by SafeWork as to why it had not sought that advice sooner, nor made the application for adjournment earlier to avoid the delay and costs associated with it, and a waste of the Commission's resources.
3. The Department will be prejudiced in terms of costs if SafeWork is allowed to reopen its case. It has expended legal costs in respect of this interlocutory process. There will be additional costs associated with the days of hearing relating to the additional evidence. More of the Commission's time and resources will be expended if the application is acceded to. Ultimately, these costs are borne by the public purse.
4. SafeWork submits that its application to reopen the evidence is consistent with its role as a model litigant in these proceedings, to actively assist the Commission to ensure that it arrives at the correct and preferable decision in situations where there is no contradictor. SafeWork's conduct in these proceedings has been inconsistent with its obligations as model litigant in that it has not avoided unnecessary litigation and delay and has not ensured the efficient use of public resources and the Commission's time. Again, SafeWork with reasonable diligence ought to have known what was required of it to prove its case and adduced the evidence in chief and in the ordinary course of the proceedings.
5. Weighing all of these matters, I have decided that it is in the interests of justice that the application is refused. While the evidence SafeWork seeks to adduce is probative and important to the Commission's exercise of discretion pursuant to s 229 of the WHS Act, the application lacks a compelling justification for the failure to present this evidence in the ordinary course of proceedings. There is simply no reasonable excuse for SafeWork missing that the Department's current compliance is a central issue in these proceedings, especially given its role as an active party in Chit Chit Than, the reference to that decision in the Interlocutory decision, the Department's and its own submissions citing the relevant principle, and its role as repeat and model litigant, and public service regulator.
6. There is prejudice to the Department. It prepared its case on the basis of the evidence SafeWork presented prior to the listing for hearing in November 2024 (which was vacated on the first day by consent) and 1 April 2025. If the evidentiary case was allowed to be reopened, the Department will face additional costs and delay. There is a public interest in the finality of litigation, particularly in matters where there has already been delays that could have been avoided.
7. SafeWork's obligations as a model litigant include the efficient use of the Commission's time and resources. Its failure to act with reasonable diligence in preparing its case undermines this obligation. The Commission must consider the broader implications of allowing SafeWork to reopen its case, without adequate justification for its failure to present its case properly from the outset, which risks incentivising procedural laxity. For all of these reasons, I find that it is not in the interest of justice to allow SafeWork to reopen its case. Accordingly, I dismiss the application.

(1) SafeWork's application to reopen its evidentiary case is refused.

(2) The matter is listed for directions by Webex at 9:15 am on Friday, 6 June 2025.

04 June 2025 - Various typographical errors corrected in paragraphs 1, 3, 8, 11, 17, 25, 26, 29, 33, 38.

04 June 2025 - Additional typographical error corrected in paragraph 17

[1] The ex tempore has been subject to non-substantive changes prior to publication.