Tudor v SafeWork NSW

Background

1. In response to the risks posed by the COVID-19 pandemic to employees of Sydney Trains who work in the open customer environment, on 30 March 2020 Sydney Trains introduced "COVID-19 TEMPORARY WAYS OF WORKING" which included encouraging station staff to utilise structures at railway stations known as "Gate Array Control Booths" ("GAC Booths") or "Garrisons", where available, to physically separate themselves from Sydney Trains' customers. One such GAC Booth was located at Liverpool Railway Station.
2. On 9 April 2020, Christopher Walsh, Sydney Trains' Deputy Executive Director Customer Delivery Region 2, sent an email to Liverpool station staff noting that, in October 2017, Sydney Trains commenced consultation with employees and the RTBU in relation to a proposal to remove the Liverpool Railway Station GAC Booth. Mr Walsh stated: The matter has been in dispute for some time as it progressed through the Dispute Settlement Procedure (DSP), to arbitration at the Fair Work Commission. Today we received a decision from the Fair Work Commission in favour of Sydney Trains, however, we have committed to the RTBU that we will not proceed to remove the GAC Booth until after the Covid 19 pandemic situation.
3. The decision from the Fair Work Commission referred to by Mr Walsh was made by Deputy President Bull and handed down on 9 April 2020 (Australian Rail Tram and Bus Industry Union v Sydney Trains [2020] FWC 1457). Deputy President Bull determined that he was "not satisfied that the proposal to remove the GAC at the Liverpool Station is contrary to any Agreement provision including clause 35 - Workplace Health, Safety and Environment, engineering standard; or can be viewed as an unreasonable exercise of its right to manage its operations". The application made by the RTBU and dealt with by way of arbitration by the Fair Work Commission pursuant to the Sydney Trains Enterprise Agreement 2018 Dispute Settlement Procedure was dismissed ([91]-[92]). Deputy President Bull's decision was the subject of an appeal by the RTBU in which a Full Bench of the Fair Work Commission (Deputy President Asbury, Deputy President Dean and Commissioner Hampton) on 2 September 2020 did not grant permission to appeal and dismissed the appeal (Australian Rail, Tram and Bus Industry Union v Sydney Trains [2020] FWCFB 4178).
4. On 16 April 2021, Sydney Trains met with RTBU officials at a COVID-19 peak level meeting and announced their intention to remove the GAC Booth at Liverpool Railway Station.
5. On 13 May 2021, Mr Tudor wrote to Mr Walsh in his capacity as HSR "to enter consultation with Sydney Trains in relation to my reasonable belief that Sydney Trains were contravening s 19 and s 20 of the Work Health and Safety Act 2011… by removing the GAC Booth from Liverpool Railway Station".
6. On Friday 14 May 2021, Paul Bartolo, Customer Area Manager, Liverpool Group, Customer Delivery Region 2, sent an email to Liverpool Railway Station staff which contained the following: As you may be aware, in recent days work has commenced to install a new temporary hub as part of the plan to provide additional gate lines and remove the garrison at Liverpool Station. I now have an estimated timeline for these activities, and wish to advise that these works are planned to continue over the weekend with the aim being to have the new temporary hub ready for use this coming Monday. Once this is complete and the hub is available for use, work will then commence to prepare and install the additional gates and remove the garrison. A new permanent hub will also be installed prior to completion of these works. Please note - If these works are completed to plan over weekend, support staff will be made available to assist with hub usage and familiarisation with the team onsite on Monday morning. These activities are expected to take approximately 6 weeks to complete, thank you for your patience during what has been a long and drawn out process to get to this point. I understand that some people would prefer that the GAC remain, however, Sydney Trains has followed due process including consultation since October 2017. The matter has been dealt with through all steps of the dispute settlement procedure resulting in the Fair Work Commission confirming Sydney Trains can proceed with the GAC removal.
7. Further email correspondence between Mr Tudor and Mr Walsh concerning the issue of the proposed removal of the GAC Booth at Liverpool Railway Station then ensued.
8. Ultimately, on 16 May 2021, Mr Tudor issued Sydney Trains with a PIN pursuant to s 90 of the WHS Act. The PIN directed Sydney Trains to "Cease the removal of the Garrison at Liverpool Railway Station" and contained the following: Sydney Trains is failing to comply with its duties under s.19 and s.20 of the Work Health and Safety Act 2012 (WHS Act) by continuing the process of removing the Garrison from Liverpool Railway Station. The Garrison at Liverpool Railway Station is a solid glass booth which allows the physical separation between members of the public and Sydney Trains staff. It physically protects workers in my workgroup from threats. Sydney Trains is obliged to ensure that the workplace at Liverpool Railway Station is without risks to any person so far as reasonably practicable. Removing the Garrison increases the workers in my workgroup to an increased risk of exposure, including to dangers of COVID-19. In April 2020, it was agreed by Sydney Trains that the Garrison will be kept until the COVID-19 pandemic is over. Unfortunately, Sydney Trains has reneged on this promise - COVID is not over, and workers in my workgroup are as much at risk as when the pandemic begun. On 12 May 2021, I began consultation with Chris Walsh (Deputy Executive Director - Sydney Trains) regarding the removal of the Garrison. On 14 May 2021, I formed a reasonable belief that Sydney Trains were commencing the removal of the Garrison over the 15 and 16 May 2021. I informed Chris Walsh that if this was the case, I would have to issue a PIN early than 19 May 2021 as specified in my original consultation email. I am now aware that Sydney Trains has commenced moving some technology from inside the Garrison and into a temporary "HUB". It seems that despite my efforts to consult about this safety issue, Sydney Trains are, I reasonably believe, continuing to remove the Garrison in contravention of s.19 and s.20 of the WHS Act. I hold a reasonable belief that Sydney Trains, by removing the Garrison from Liverpool Railway Station, is failing to comply with its general duties under s 19 of the WHS Act, including by not: 1. ensuring, so far as is reasonably practicable, the health and safety of workers engaged by Sydney Trains at Liverpool Railway Station; 2. ensuring, so far as is reasonably practicable, the health and safety of other persons passing through or conducting business at Liverpool Railway Station; 3. ensuring, so far as is reasonably practicable the provision and maintenance of a work environment without risks to health and safety at Liverpool Railway Station; 4. ensuring, so far as is reasonably practicable the provision and maintenance of safe systems of work at Liverpool Railway Station; 5. ensuring, so far as is reasonably practicable the provision of adequate facilities for the welfare at work of workers in carrying out work for Sydney Trains, including ensuring access to those facilities, at Liverpool Railway Station; Further, I hold a reasonable belief that Sydney Trains by removing the Garrison from Liverpool Railway Station is failing to comply with its obligation under s 20 by not ensuring that its workplace is without risks to any person so far as is reasonably practicable. ln order to remedy this situation, Sydney Trains must take all necessary steps to cancel the removal of the Garrison at Liverpool Railway Station.
9. On 17 May 2021, Sydney Trains made a request pursuant to s 100 of the WHS Act to SafeWork to appoint an inspector to review the PIN. Assistant State Inspector Mostafa Issa was duly appointed and conducted an inspection at Liverpool Railway Station on 17 May 2021.
10. On 20 May 2021, the GAC Booth was removed from Liverpool Railway Station by Sydney Trains.
11. On 24 May 2021, Mr Issa issued his Investigation Report which contained the following: Following a review of the PIN and enquiries into the circumstances that are the subject of the PIN, I have not formed a reasonable belief that Sydney Trains is contravening sections 19 and 20 of the Work Health and Safety Act 2011 in the manner alleged. Hence, whilst I can certainly appreciate the workers' preference to keep the Garrison, I have decided to cancel the PIN issued by Richard on 16 May 2021.
12. On 7 June 2021, Mr Tudor lodged an application for an internal review of Mr Issa's decision to cancel the PIN with SafeWork's Governance and Appeals Unit ("GAU") pursuant to s 224 of the WHS Act. James Allison, Manager (State Coordinator), GAU, was appointed as the internal reviewer. On 21 June 2021, Mr Allison made a decision to confirm the cancellation of the PIN by Mr Issa. Mr Allison's internal review decision contained the following: 6. Assistant State Inspector Issa responded to Request For Service (RFS) 1-431902, which was a statutory request under section 100 of the Act from Sydney Trains to review the PIN issued by the applicant to Sydney Trains. The Inspector visited the site on 17 May 2021 and took contemporaneous notes and photographs and interviewed management representatives and workers. 7. After extensive enquiries the Inspector was unable to form a reasonable belief to confirm the PIN and cancelled the PIN under section 102(1)(c) of the Act. The inspector recorded the reasons for that decision in Inspection Report 10-123071 on 24 May 2021 and communicated the outcome to the affected parties. It is noted that the workers' names were not recorded on Inspection Report 10-123071 provided to Sydney Trains, to protect the identity of those workers and meet the requirement for confidentiality of information under section 271 of the Act. In summary the Inspector noted that: a) In relation workers' security that Sydney Trains provides workers access to the adjacent Station Duty Manager's office (SDM Office). And that it was is an appropriate alternative to the Garrison to serve the function of the 'safe space'. That the Customer Service Officers (CSOs) are not undertaking work in the Garrison, but rather encouraged to remain accessible and visible to patrons. b) That workers can shelter in the SDM Office in extreme weather conditions. c) That there was no apparent Increase the risk of exposure to COVlD-19, as at 17 May 2021, the use of masks on public transport was no longer compulsory although encouraged. Workers were unable to provide how the Garrison, and the manner it was being used, provided greater protection for COVID-19. The SDM Office remained available and accessible to workers should workers wish to remove themselves from patron accessible areas. d) In relation to Sydney Trains retraction of its former its commitment to keep the Garrison during the COVID-19 the Inspector found that the risks associated with COVID-19 were being managed at a state level. That workers were expected to maintain social distancing and stay at home if unwell, may wear masks should they wish and are encouraged to maintain hand hygiene. That the risks of COVID-19 were being appropriately managed and that the planned removal of the Garrison, despite the prior commitment made by Sydney Trains, did not pose an increased COVID 19 risk to workers. It is noted that at the time of the Inspector's visit that the Garrison was in situ and that he encouraged workers and their respective HSRs through the inspection report to contribute to the consultation relating to the removal of the Garrison and the introduction of the HUB, so as to ensure that any issues or queries were duly considered and responded to by Sydney Trains and the Inspector also offered further assistance. 9. It is noted that the issues raised by the applicant in the PIN and addressed by the Inspector in his decision were previously considered by the Fair Work Commission Australian Rail Tram and Bus Industry Union V Sydney Trains (C2019/2880) on 9 April 2020. The applicant provided evidence to the proceedings which considered Sydney Trains obligations for work health and safety under section 19 of the Act and an industrial agreement between the parties. The Deputy President finding in favour of Sydney Trains commented as follows: '[91] The Commission, having regard to the above and the undertakings provided by Sydney Trains in the course of the hearing of this matter, is not satisfied that the proposal to remove the GAC at the Liverpool Station is contrary to any Agreement provision including clause 35 - Workplace Health, Safety and Environment, engineering standard; or can be viewed as an unreasonable exercise of its right to manage its operations. In reacting to any perceived or actual security threat, staff undertaking customer service duties on the paid area of the concourse can access the closest safe space either on Platforms 2 and 3, or the designated secure workplace adjacent to the existing GAC.' 10. The evidence is that Sydney Trains did not breach section 19 or 20 of the Act in proposing to (and subsequently removing) the Garrison at Liverpool Train Station. It is accepted that the Garrison was obsolete as its previous purpose of housing computers etc for the control of the superseded magnetic swipe tickets no longer existed with the introduction of the Opal card system. The evidence set out in decision of the Fair Work Commission was that Garrisons were not present at all stations including significant stations such as Sydney Central, Town Hall, Wynyard, Circular Quay and North Sydney. 11. It is evident that the Hub system replacing the Garrison at Liverpool Train Station augmented by other arrangements such as the use of the Station Managers Office when necessary for health, security or shelter could be considered reasonable. Section 19 and 20 of the Act are predicated on reasonable practicality and it would seem impracticable for Sydney Trains to maintain both the Garrison and Hub systems.
13. On 5 July 2021, Mr Tudor filed the Application in this Commission in which he claimed the following: 1. Revoke the decision made by Inspector Mostafa Issa made on 24 May 2021 and affirmed by internal review on 21 June 2021; 2. Affirm the Provisional Improvement Notice issued by the Applicant on 16 May 2021; and 3. Any other order the Commission deems appropriate.
14. SafeWork was named as the respondent to the Application.
15. On 16 July 2021, Sydney Trains sought and was granted leave to intervene in the proceedings.
16. A Notice of Motion dated 28 September 2021 was filed in the proceedings by Sydney Trains seeking the following orders: 1. An order pursuant to rule 13.4 of the Uniform Civil Procedure Rule 2005 (NSW) that the Application filed on 5 July 2021 be dismissed. 2. An order pursuant to section 181(2)(a) or (b) of the Industrial Relations Act 1996 (NSW) that the Applicant pay Sydney Trains' costs of the proceedings on an indemnity basis. 3. Such further order or other orders as the Commission deems fit.
17. The grounds and reasons in support of the Notice of Motion were stated as follows: 1. The Application is frivolous and vexatious, and was instituted without reasonable cause. In particular, the Application is: a. vexatious as the Application seeks to re-litigate a matter that has already been litigated and determined by both the Fair Work Commission and a Full Bench of the Fair Work Commission; and b. frivolous and without reasonable cause because if the relief sought in the Application is granted then that would have the absurd and futile effect of requiring Sydney Trains to "take all necessary steps to cancel the removal of the [GAC] at Liverpool Station" in circumstances where the GAC does not exist as it has been removed some months ago.

Case for Sydney Trains

1. Sydney Trains relied on an affidavit affirmed by Mr Walsh on 2 September 2021 which detailed the history of the dispute proceedings initiated by the RTBU in the Fair Work Commission. Mr Walsh stated: 28. On Thursday, 9 April 2020, the FWC Decision was issued. I received a copy of the FWC Decision at about 2.30pm that day. 29. At the time of receiving the FWC Decision, COVID-19 was relatively new and evolving. Sydney Trains made a decision, as an act of good will, not to remove the GAC immediately given concerns raised about COVID-19 and the then current COVID-19 situation. To the best of my knowledge and belief, Suzanne Holden, Sydney Trains' then Chief Customer Officer, called Alex Claasens, Secretary of the NSW Branch of the RTBU that day to explain that Sydney Trains would not remove the GAC until after the current COVID-19 situation. 30. That same afternoon, I sent an email to Liverpool Station staff referring to Sydney Trains' decision not to remove the GAC immediately… It was not Sydney Trains' intention, and my email was not intended to suggest, that Sydney would not remove the GAC until COVID-19 was eliminated. Rather, it was Sydney Trains intention to not remove the GAC until after the (then) current COVID-19 situation which, at that time, included community transmission of COVID-19 in Sydney, temporary closures of non-essential activities and businesses, and restrictions on travel. 31. Around the time of the FWC Decision, I also discussed the decision to delay removing the GAC with Leanne Watson, Head of Customer Environment, who lead the project team that was responsible for, among other things, implementing the project and engaging the contractors that would remove the GAC. I told Ms Watson that I would contact her once a decision was made to proceed with the removal of the GAC. 32. On 30 April 2020, Sydney Trains received a copy of the Notice of Appeal filed by the RTBU in relation to the FWC Decision and commencing the Appeal Proceedings… 33. On 2 September 2020, the Full Bench Decision was issued. I received a copy of the Full Bench Decision on that day or soon afterwards. The removal of the GAC 34. Around the time of Christmas 2020, Ms Watson contacted me for an update on the proposed removal of the GAC. I was aware from my conversation with Ms Watson, and other Sydney Trains' documents, that Sydney Trains had set aside approximately $180,000 (excl. GST) to fund the removal of the GAC and replace it with a Hub and an additional 5 Opal card gates, and that the funding was intended to be utilised in the financial year ending 30 June 2021. 35. I told Ms Watson that I wanted the GAC removed by the end of the financial year but that I was not yet ready for the GAC to be removed. I asked her what was the last date that she would need my approval to remove the GAC in order for it to be removed by the end of the financial year. It was my understanding that, in the meantime, pre-planning work for the removal of the GAC was to be undertaken. 36. In around February or March 2021, I decided that Sydney Trains would proceed with the removal of the GAC. By that time, Sydney Trains had been proposing the removal of the GAC for around three and a half years, and Sydney Trains and its workers were no longer facing the COVID-19 situation that was faced in April 2020. That is, there was minimal, if any, community transmission of COVID-19 and the temporary closures of non-essential activities and businesses, and restrictions on travel had, for the most part, been lifted. I communicated my decision to Leanne Watson, Head of Customer Environment. 37. To the best of my knowledge and belief, on 16 April 2021 there was a quarterly Peak Level Consultation meeting (as contemplated by clause 7.1 of the EA) attended by, among others, Karen McCarthy (Sydney Trains Acting Chief Customer Officer) and representatives from various unions including Mr Claasens. I did not attend that meeting but, to the best of my knowledge and belief, Ms McCarthy informed the attendees of that meeting that Sydney Trains intended to proceed with the removal of the GAC. … 39. At 10.30pm, Sunday, 16 May 2021, I received an email from Mr Tudor attaching the PIN (which consisted of both a completed template Provisional Improvement Notice and a separate Schedule A…). When I received the PIN, I disagreed with the concerns raised in it, particularly given that they had been the subject of consultation since November 2017 and a previous dispute that had been arbitrated by the FWC. 40. On the morning of Monday, 17 May 2021, I emailed a copy of the PIN to Virginia Gaskell (A/Director Safety Delivery Customer Service, Operations Delivery and Train Crewing & Support) and Campbell Clark (Manager Regulatory Liaison) and indicated that I wanted the PIN to be reviewed by SafeWork NSW. 41. I subsequently had a conversation with Mr Clark and while I do not recall the specifics of the conversation, I recall that the outcome was that Mr Clark would contact SafeWork NSW to seek a review of the PIN under section 100 of the Work Health and Safety Act 2011 (NSW) (WHS Act). 42. I was subsequently informed by Mr Clark later that morning that he had contacted Ian Blume at SafeWork NSW and that an inspector would attend Liverpool Station later that day. At 2.15pm that day, I was copied into an email between Mr Clark and Mostafa Issa, an inspector with SafeWork NSW, which said "As discussed we have arranged for the Customer Area Manager (CAM) and the deputy HSR from Cabramatta to come along with a safety professional to meet you at Liverpool station at 3.30 pm". 43. In the late afternoon of the visit, I had a telephone conversation with Paul Bartolo, the Sydney Trains Customer Area Manager (CAM) responsible for Liverpool Station. Mr Bartolo told me that he was at Liverpool Station and we had a conversation to the following effect: Mr Bartolo said: The SafeWork inspector is still here at the station. I said: Has he given an indication that the work needs to stop? Mr Bartolo said: No, he hasn't. I've even told him that we'll be knocking it down this week. 44. As a result of the conversations I had on 16 May 2021, including the conversation with Mr Bartolo, I decided that Sydney Trains would proceed with the works already underway including the planned removal of the GAC on the evening of Thursday, 20 May 2021. That was because it was my understanding that: a. the removal of the GAC was permitted by the FWC Decision and Appeal Decision; b. there would be costs associated with cancelling the proposed demolition of the GAC; c. the PIN was stayed under section 100 of the WHS Act and therefore did not prohibit Sydney Trains from removing the GAC; and d. SafeWork NSW was aware of Sydney Trains' intention to proceed to remove the GAC and had not issued a Prohibition Notice under section 195 of the WHS Act or otherwise said that Sydney Trains could not proceed to remove the GAC. 45. In the days and weeks following 20 May 2021, a new Hub and opal gates were installed at Liverpool Station. The new opal gates were installed, in part, where the GAC was previously located.
2. Sydney Trains also relied on written submissions dated 28 September 2021 which contained the following (footnotes omitted): A. Introduction 1. The Applicant on the motion (hereafter referred to as the Intervenor or Sydney Trains) filed a Notice of Motion on 28 September 2021 (Notice of Motion) which was supported by the affidavit of Christopher Walsh affirmed on 2 September 2021 (Walsh Affidavit). … 3. The primary relief sought by Sydney Trains is, in effect, that the Application be struck out on the basis that the Application is frivolous and vexatious and has no reasonable prospects of success, and that the Applicant pay Sydney Trains' costs. 4. The matters giving rise to the Notice of Motion are described in the Walsh Affidavit and, in short summary, address the fact that: (a) the Applicant, Mr Richard Tudor issued a Provisional Improvement Notice (PIN) under section 90(2) of the Work Health and Safety Act 2011 (NSW) (WHS Act) on 16 May 2021 directing that "...Sydney Trains must take all necessary steps to cancel the removal of the Garrison [or GAC] at Liverpool Railway Station"; (b) the issue at the heart of these proceedings, being the proposed removal of the GAC, has been the subject of an historical dispute that was heard and determined by both the Fair Work Commission (FWC) and a Full Bench of the FWC in favour of Sydney Trains with the effect that Sydney Trains proposal to demolish the GAC was not a contravention of the WHS Act and not otherwise prohibited; and (c) the GAC at Liverpool Station does not exist because it was demolished on the evening of Thursday, 20 May 2021. 5. The Application is frivolous and vexatious. In particular, the Application is vexatious and gives rise to an abuse of process as it seeks to re-litigate issues previously determined, and frivolous because the ultimate relief sought by the Applicant cannot be granted given that the GAC does not exist. 6. Sydney Trains previously wrote to the Applicant's representatives, putting the Applicant on notice of its intention to seek its costs of these proceedings if they were not withdraw as they, in Sydney Trains submission, fall squarely within the contemplation of section 181(2)(a)-(b) of the IR Act. B. Relevant Powers - UCPR Rule 13.4 7. Part 13 of the UCPR includes rule 13.4. It provides as follows: 13.4 Frivolous and vexatious proceedings (cf SCR Part 13, rule 5; DCR Part 11A, rule 3; LCR Part 10A, rule 3) (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings- (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, the court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1). 8. The UCPR applies to proceedings in the Industrial Relations Commission (IRC) to the extent provided by Schedule 1 of the UCPR. The effect is that Part 13 of the UCPR applies to all civil proceedings in the IRC (when constituted otherwise as the Industrial Court), including these proceedings under the WHS Act. … C. The IRC's Power to Award Costs 11. Turning to the IRC's power to award costs, section 181 of the IR Act provides as follows: 181 Costs (1) Subject to the rules of the Commission and any other Act or law­ (a) the Commission may award costs, and (b) costs are in the discretion of the Commission, and (c) the Commission may determine by whom and to what extent costs are to be paid, and (d) the Commission may order costs to be assessed on the basis set out in the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) or on any other basis. (2) However, the Commission may award costs only in the following cases­ (a) the Commission may award costs against an applicant if it considers that the application to it was frivolous or vexatious, or (b) the Commission may award costs against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause, or (c) the Commission may award costs against a party to proceedings under Part 6 of Chapter 2 (Unfair dismissals) who, in the opinion of the Commission, unreasonably failed to agree to a settlement of the claim or whose application was frivolous or vexatious, or … (4) In this section, costs includes- (a) costs of or incidental to proceedings in the Commission, and (b) in the case of an appeal to the Commission, the costs of or incidental to the proceedings giving rise to the appeal, as well as the costs of or incidental to the appeal. (emphasis added) 12. The IRC has recognised its power to award costs on a number of occasions. 13. Section 181 of the IR Act provides the IRC with a "wide discretion to award costs, which must of course be exercised judicially", but there is no need to for a party to identify special circumstances to justify the award of costs. 14. In Re Operational Ambulance Officers (State) Award (No 2) (2011) 207 IR 303; [2011] NSWIRComm 85, a Full Bench of the IRC, in relation to an application for costs on the basis that a notice of motion was frivolous or vexatious, or without reasonable cause, said: [27] Thus, in relation to the present proceedings, the Commission's discretion to award costs is limited by s 181(2)(a) and (b), namely, costs may be awarded against an applicant if the Commission considers that the application to it was frivolous or vexatious, or against a party to proceedings who, in the opinion of the Commission, instituted proceedings without reasonable cause. [28] The exercise of the Commission's discretion to award costs involves a two stage process: see Bankstown City Council v Paris [1999] NSWIRComm 585; (1999) 93 IR 209 and Four Sons Pty Ltd v Sakchai Limsiripothong (No 2) [2000] NSWIRComm 131; (2000) 100 IR 400. The first stage requires a determination as to whether s 181(2) of the Act is enlivened. The second stage of the process requires the Commission to exercise its discretion whether to award costs under s 181(1) of the Act. 15. In Bankstown City Council v Paris (1999) 93 IR 209; [1999] NSWIRComm 585, in awarding costs by reference to section 181(2)(c) of the IR Act, the Commission (per Wright J (President), Peterson J and Bishop C) said (at 224): We consider that the following principles should be applied in relation to the application for indemnity costs made in circumstances where the Commission has held that the first criterion in s 181(2)(c) has been held to be satisfied, and an application for costs is made. The Commission can properly, in the appropriate exercise of its discretion, make an order for indemnity costs. The power to make a costs order of that kind is clearly available because of the terms of s 181(1)(b). It must, however, be recognised that the exercise of discretion is being called for in the context of circumstances which are out of the usual. That is, the discretion is only available in non-Court Session matters where one or more of specified criteria are met. Secondly, although the finding that a relevant criterion has been met may, in some circumstances, be satisfaction of circumstances which might lead to the award of indemnity costs, and although the existence of such circumstances is relevant to the grant of costs on that basis, the Commission should exercise the discretion in full recognition of the caution that should be exercised before making a costs order on a basis other than that costs should simply follow the event, since that is the way in which a discretion to order costs would be exercised "regularly and judicially": see, for example, Moama Bowling Club Ltd v Armstrong (No 2) (1995) 64 IR 264 at 267 per Cahill Deputy CJ and Peterson J. Nevertheless, and thirdly, provided such caution is exercised, where the circumstances clearly fall within those where the courts have recognised that indemnity costs should, or may, be granted, then the Commission should consider, in the exercise of its discretion, whether costs should be awarded on that basis. Nevertheless, even at that stage of the exercise of the discretion, the Commission is to recognise that, as the authorities in relation to indemnity costs make clear, the categories in which the discretion may be exercised are not closed and the exercise of the power in relation to indemnity costs remains throughout discretionary. The discretion must be exercised judicially. 16. As a result, the IRC's power to award costs in favour of Sydney Trains extends to a power to award costs on an indemnity basis. 17. Costs may be awarded on an indemnity basis where the proceedings amount to an abuse of process: Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359 at 362, such as where they are commenced other than in good faith, or for an ulterior or collateral purpose: Palmer v Gold Coast Newspapers Pty Ltd [2013] QSC 352; Packer v Meagher [1984] 3 NSWLR 486 at 500. A formal warning of an intention to claim indemnity costs may enhance the prospects of obtaining one: Huntsman Chemical Co Aust Ltd v International Pools Aust Pty Ltd (1995) 36 NSWLR 242, citing Insurers' Guarantee Fund NEM General Insurance Association Ltd (In Liq) v Baker (unrep, 10/2/95, NSWCA). 18. The fact that Sydney Trains has standing in these proceedings as an Intervenor does not deprive it of the ability to obtain a costs order in its favour: see City of Burnside v Attorney-General South Australia (1994) 63 SASR 65 and Quach v Marks (No 2) [2021] FCA 922. That is perhaps even more so apparent in present proceedings where Sydney Trains is the true contradictor. D. Background to the Application 19. The dispute that is the subject of these proceedings has an extensive background. That background is set out in the Walsh Affidavit including in particular: (a) the decision of Deputy President Bull in the proceedings commenced by the Australian Rail Tram and Bus Industry Union (RTBU) in the Fair Work Commissioner (FWC) (the FWC Proceedings) - Australian Rail Tram and Bus Industry Union v Sydney Trains [2020] FWC 1457 (FWC Decision)… ; (b) the Appeal Book filed in the RTBU's appeal against the FWC Decision (Appeal Proceedings) (Appeal Book)… including, most relevantly, the Statement of Jasmin Nicole Streimer (Streimer Statement)… 20. The background is summarised below. 21. Sydney Trains' business or undertaking is the operation of rail services across the metropolitan Sydney area, bounded by Berowra, Emu Plains, Macarthur and Waterfall in New South Wales. 22. Liverpool Station is in the suburb of Liverpool and was originally built in 1879-1880. Since that time, it has been updated significantly following advances in technology and increased rail capacity and patronage. 23. Between around 2000 and Thursday, 20 May 2021, there was a Gate Array Control (GAC) at Liverpool Station. Opposite where the GAC was located is a secured workplace accessible only by Sydney Trains employees (Secure Workplace). 24. Liverpool Station concourse is separated into two areas, unpaid and paid. These areas are separated, at all relevant times, by a single set of Opal card gates, made up of eight individual Opal card gates. 25. Prior to the introduction of Opal cards (in around late 2012), customers used magnetic stripe tickets to operate the gates into and out of Liverpool Station. The GAC was installed to control and operate the gates during this time. The GAC was not intended to be used as a 'safe space' for Station Workers. The GAC contained computers and information needed to operate the gates and service the needs of customers, prior to the introduction of staff-issued iPhones and the installation of Hubs. Staff-issued iPhones and Hubs were introduced to facilitate Station Workers being able to work in the open customer environment in order to provide improved customer service. 26. Hubs are stainless steel workstations that allow Station Workers to access Sydney Trains' information systems on the concourse and platforms, and provide face-to-face customer service. Hubs have been introduced across Sydney Train's network since July 2013. 27. Since the implementation of the GAC in or around September 2000, a number of features of Sydney Trains' operations have changed including: (a) the introduction of the Opal card payment system in introduced in around late 2012, with paper tickets completely phased out across the entire network with the last paper ticket sold on 1 August 2016; (b) Sydney Trains Customer Service workers have been directed to interact more with customers in line with the Government's, and Sydney Trains', focus on customer service; and (c) since December 2015, all Sydney Trains Station Workers have been allocated iPhones, which allow them to remotely access emails, timetables, live run data, call security or emergency services, and make station announcements over the public address system and understand impacts to the network. These portable devices obviated the need for Station Workers to access desktop computers, desktop based microphones for the public address systems and desktop phones. 28. In 2017, Sydney Trains conducted a site visit at Liverpool Station with a view to installing a Hub and removing the GAC to allow installation of a glass wall and additional Opal gates in the place of the GAC. At that time, Sydney Trains had already removed the GAC's at Town Hall, Central, Wynyard, Circular Quay and North Sydney Stations. 29. From October 2017, Sydney Trains engaged extensively with its workers and their representatives, including the RTBU, in relation to the proposal to remove the GAC… E. The Dispute and its Resolution 30. On 28 April 2018, the issue relating to the removal of the GAC and installation of a Hub at Liverpool Station was placed in dispute under the Dispute Resolution Procedure (DRP) in clause 8 of the Sydney Trains Enterprise Agreement 2018 (EA) (the Dispute). 31. The Dispute subsequently proceeded through Step 1, to Step 2 to Step 3 and, ultimately, to the FWC Proceedings (i.e. Step 4) in accordance with the DRP. 32. The application to the FWC commencing the FWC Proceedings (FWC Application) identified the Dispute as relating to the following: Clause 8 - Dispute Settlement Procedure Clause 35 - Workplace Health, Safety and Environment… Section 19 - Work Health and Safety Act 2011… 33. The FWC Application referred specifically to the following: 3. The RTBU is concerned that the removal of the [GAC] will adversely affect staff safety at Liverpool Station and interfere with the operational requirements of the station. 34. The FWC Application said that it sought: 1. A finding that the removal of the [GAC] does not comply with the obligations on Sydney Trains in clause 35 of the [EA] [WORKPLACE HEALTH, SAFETY AND ENVIRONMENT]. 2. Further, or in the alternative, a finding that the removal of the [GAC] does not comply with Sydney Trains obligations under section 19 of the Work Health and Safety Act 2011. 3. Further, or in the alternative, a finding that the removal of the [GAC] is unreasonable in the circumstances. 4. An order that Sydney Trains does not removal the [GAC] from Liverpool Station until such time that an acceptable alternative is construed. 35. The Dispute, so far as it was litigated in the FWC, focused on whether the removal of the GAC would be contrary to section 19 of the WHS Act. 36. As explained below, the Dispute was determined in favour of Sydney Trains by both the FWC and the Full Bench of the FWC. 37. It is abundantly clear that the issues determined by the FWC, as upheld by the Full Bench of the FWC, are the same issues that the IRC would be required to determine if it were to exercise its external review power under section 229(4) of the WHS Act to affirm, vary or revoke the internal review decision of SafeWork NSW (Internal Review Decision) made under section 226 of the WHS Act to affirm the decision of Inspector Mostafa Issa (Inspector's Decision) to cancel the PIN. 38. However, Sydney Trains is now faced, in these proceedings, with responding to a PIN that, in effect, seeks the same relief as sought, argued and dismissed in the Dispute. The effect is that these proceedings are an abuse of process. 39. In the Applicant's application for the Internal Review (which resulted in the Internal Review Decision now under review in the IRC), the Applicant relied on four alleged errors made by Inspector Issa in the Inspector's Decision being: (a) "Increase the risk of workers' security" (Security Issue); (b) "Increase the risk of exposure to COVID-19" (COVID-19 Issue); (c) "Increase the risk of exposure to extreme weather conditions" (Weather Issue); and (d) Demonstrate that Sydney Trains retracted its commitment to keep the [GAC] during the COVID-19 pandemic" (Commitment Issue). 40. However, in previously addressing those same issues, specifically the Security Issue and the Weather Issue, the FWC Decision relevantly provides (among other things): (a) In relation to compliance with the WHS Act generally: (i) "The RTBU expressed concerns that the GAC's removal would adversely impact employee safety and interfere with the operational requirements at the Station"; (ii) "The RTBU submits that in removing the GAC Sydney Trains is not complying with its safety obligations under the Agreement"; (b) In relation to the Weather Issue: (i) "The GAC provides respite from extreme weather and is a safe place for staff in case of emergencies"; (c) In relation to the Security Issue: (i) "The RTBU contends that that the GAC is a superior safe space to that of the Duty Station Manager's office and the interview/waiting room, and is preferred by employees as it is under CCTV coverage and can be entered without staff having to tum their back on potential threats. It is primarily see-through glass from approximately four feet from the ground up, with a lockable door and ability to use an address system to make contact with those outside the GAC. Removal of the GAC will reduce the number of safe spaces for station staff. By reducing the overall level of health and safety measures it is argued by the RTBU that Sydney Trains is acting contrary to its obligations under the Agreement in respect to ensuring the health, safety and welfare at work of its employees and s.19 of the Work Health and Safety Act 2011 (NSW)"; (ii) "I accept that there is a risk that the Station employees may encounter an altercation or interaction with passengers or members of the public that causes an employee concern for their safety. On this basis Sydney Trains should as far as is reasonably practicable put in place measures to eliminate or reduce this risk. In doing so it is well understood that this duty does not require an employer to take every possible step available to maintain a safe working environment, only those that are reasonably practicable.... The secure workplace identified by Sydney Trains is directly opposite the existing GAC; while preferred by employees it is no more accessible than the secure workplace identified by Sydney Trains. The GAC does not have many of the services the secure workplace provides, particularly following the undertakings provided by Sydney Trains to address the genuine concerns raised by the RTBU... The preference of Station employees is that the GAC remains in conjunction with the installation of a Hub. This preference, while understandable, was not made out based on a safety case. While the GAC is the employees' preferred safe place, it is not the only safe space at the Liverpool Train Station. While on the platforms employees are able to retreat into the buildings on the platforms and when in the paid concourse area can access the Sydney Trains-nominated secure workplace (which is also accessible from the unpaid area of the concourse) with no more difficulty than accessing the GAC". 41. The FWC Decision concluded with: [81] While the GAC provides an additional safe space for station staff it has not been demonstrated to be either essential to the provision of a safe space for station employees or a superior safe space to that of the secure workplace Sydney Trains has made available for employees when a safety risk is identified. [82] Having regard to the evidence of Ms Streimer (which was not seriously contested on this point) I am satisfied that Sydney Trains has consulted with the relevant employees and their representative the RTBU, and has undertaken a risk assessment on the removal of the GAC as per its Agreement obligations in regard to providing a safe workplace. [83] Sydney Trains has identified the risks associated with its proposed change, has put in place appropriate control measures, and has provided during the proceedings undertakings to take further measures to resolve the concerns raised by the RTBU. I am therefore satisfied that Sydney Trains has complied with its safety obligations. … [91] The Commission, having regard to the above and the undertakings provided by Sydney Trains in the course of the hearing of this matter, is not satisfied that the proposal to remove the GAC at the Liverpool Station is contrary to any Agreement provision including clause 35 - Workplace Health, Safety and Environment, engineering standard; or can be viewed as an unreasonable exercise of its right to manage its operations. In reacting to any perceived or actual security threat, staff undertaking customer service duties on the paid area of the concourse can access the closest safe space either on Platforms 2 and 3, or the designated secure workplace adjacent to the existing GAC. 42. In considering paragraph 91 of the FWC Decision, it is relevant to note that clause 35 of the EA effectively applied section 19 of the WHS Act as a term of the EA in provides that ''The Employer must ensure the health, safety and welfare at work of all its Employees". 43. On appeal, a Full Bench of the FWC constituted by Deputy President Asbury, Deputy President Dean and Commissioner Hampton, dismissing the appeal against the FWC Decision in Australian Rail, Tram and Bus Industry Union v Sydney Trains [2020] FWCFB 4178 (Full Bench Decision), said: (a) "The dispute between the parties was fundamentally about the decision of Sydney Trains to remove the existing Gate Array Control known as the 'Garrison' or GAC Booth (GAC) from the paid concourse area of the Liverpool Railway Station in the south-west of Sydney (Liverpool Station) and install a 'Hub'" - that same dispute now before the Industrial Relations Commission; (b) the RTBU sought to "lead further evidence of the use of the GAC during COVID-19 pandemic"; (c) "... it is apparent from the Decision that the Deputy President accepted that the retention of the GAC was sought by members of the Appellant as the preferred facility and that there were some legitimate concerns with its removal. However, the Deputy President found that this preference, while understandable, was not made out based on a safety case and that in all of the circumstances he was not satisfied that the proposal to remove the GAC at the Liverpool Station was contrary to any Agreement provision or could be viewed as an unreasonable exercise of the Respondent's right to manage its operations. This, and the related findings, were open on the evidence and we do not consider that any arguable case of error by the Deputy President in reaching these conclusions has been made". F. The Effect of the FWC Proceedings and Appeal Proceedings 44. The effect of the FWC Decision and the Full Bench Decision is that the dispute between Sydney Trains and any employees and their representatives has been resolved. 45. Clause 8.4 of the EA provides that ''Any dispute between the Employer and Employee(s) or the Employee's Representative shall be resolved according to the following steps: ...'' 46. As a result, while the above Dispute was initiated on 28 April 2018 by John Steck, another employee of Sydney Trains, and the FWC Proceedings were initiated by the RTBU, the resolution of the Dispute is binding on the Employer (Sydney Trains), its employees (including the Applicant, Mr Tudor) and their representatives (including the RTBU), and any attempt to re-litigate the Dispute is an abuse of process. 47. In Haines v ABC (1995) 43 NSWLR 404; [1995] NSWSC 136, Hunt CJ at CL concluded that, notwithstanding the absence of any issue estoppel, a party's attempt to re-litigate against another party an issue which he has already lost may amount to an abuse of process. In so concluding, His Honour said: 16. The Australian Film Finance Corporation is not, of course, entitled to the benefit of the ruling by Levine J upon the basis of any principle of either res judicata or issue estoppel, as the causes of action are not the same, and that determination was not one between the same parties or their privies: Blair v B Curran (1939) 62 CLR 464 at 531. There is nevertheless a line of authority to which I have been referred which demonstrates that, notwithstanding the absence of any issue estoppel, a party's attempt to re­litigate against another party an issue which he has already lost may amount to an abuse of process. 17. In Reichel v Bishop of Oxford, (1889) 14 App Cas 259, the plaintiff (the Reverend Oswald Reichel) was the vicar of Sparsholt. After a scandal had arisen with regard to the morality of his conduct, the Bishop informed him that he must either submit to an inquiry into his conduct or cease to hold his benefice as vicar. The plaintiff then executed a deed before witnesses resigning his benefice, and forwarded it to the Bishop upon the understanding that his formal acceptance of it would be postponed. Before it was so accepted, the plaintiff executed a further deed purporting to revoke his resignation. The resignation was nevertheless then accepted by the Bishop. The plaintiff brought proceedings against the Bishop seeking a declaration that he remained the vicar, but he was unsuccessful upon the basis that the resignation had been complete with no more than a postponement of the Bishop's formal assent to it, and that his resignation had been irrevocable (at 267-268, 269, 271-272). Subsequently, the Reverend John Magrath (who had been appointed to the benefice of the Vicarage of Sparsholt as successor to the Reverend Reichel) brought proceedings against Reichel for a declaration that he (Magrath) was the vicar and for an injunction to prevent Reichel from depriving him of the use and occupation of the house and lands comprising the ecclesiastical living to which he had been appointed. Reichel set up in his defence the same claim which he had unsuccessfully made against the Bishop. It was held that the defence was an abuse of procedure which should be struck out, leading to the declaration and injunction sought against him: Reichel v Magrath (1889) 14 App Cas 665 at 668-669. Lord Halsbury LC said (at 668) that it would be: "... a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceeding to set up the same case again. ... it surely must be in the jurisdiction of the Court of Justice to prevent the defeated litigant raising the very same question which the Court has decided in a separate action." 48. The principles relating to an abuse of process arising from re-litigation of previous proceedings was also addressed in SOS Nursing & Home Care Service Pty Ltd v Smith [2013] FCA 295 where Buchanan J said: 49. The Nurses' Association also argued that the application represented an abuse of process. A finding to that effect will not add any legal consequence to my conclusion about issue estoppel but nevertheless the contention should be addressed, because it is possible to characterise some conduct as an abuse of process, even where the strict tests for issue estoppel are not met. 50. A useful statement of the particular principles relied on by the Nurses' Association may be found in the judgment of French J (when his Honour was a judge of this Court) in Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [58]- [70] (see also Habib at [89]). A recent application may also be found in the judgment of Foster J in Ezekiel-Hart v Law Society of the Australian Capital Territory [2013] FCA 257 at [53]- [55]. The principle relied on by the Nurses Association is usually traced back to Reichel v Magrath (1889) 14 App Cas 665 (at 668). In Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, Mason CJ, Deane and Dawson JJ said, referring to Reichel v Magrath (at 393): ...proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. 51. That principle appears to me to apply in the present case. The point of construction which the applicant wishes to ventilate in the present case was argued to finality, before a competent court, in proceedings to which the applicant was a party and was under no relevant disability or disadvantage. The point was not pursued in an appeal instituted by the applicant. Indeed, the applicant's written submissions candidly stated the position: 12. It is not disputed that the issue of the interpretation of the SOS Agreement was an issue in the proceedings before the Federal Magistrates Court in NSW Nurses' Association v SOS Nursing & Home Care Service Pty Limited [2011] FMCA 225. It was not the sole issue, but was one which was considered in the context of determining whether the Applicant (and its director) had contravened provisions of the SOS Agreement with respect to one of its employees. It is also not disputed some of the orders which were made by the Federal Magistrates Court were based on, or followed from its determination of that issue. Finally, it is not disputed that in these proceedings the Applicant seeks a declaration as to the proper interpretation of the SOS Agreement, and it asks the Court to consider an issue which was before the Federal Magistrates Court in [2011] FMCA 225. 52. The Nurses· Association has a clear interest in the maintenance of the judgment of the FMCA. In my view the attempt to go behind the judgment, by casting the proceedings into a different form with a submissive or non­responsive nominal opponent, should not be countenanced. For that reason also, the proceedings should be dismissed summarily. 49. In Stokes (by a tutor) v McCourt [2013] NSWSC 2014, Lindsay J considered, among other things, whether the maintenance or conduct of these proceedings is constrained by the judgment of the Supreme Court of Queensland upon a proper application of principles relating to res judicata, estoppel or abuse of process. Lindsay J noted at [125]: The grounds upon which the Court may find an abuse of its processes are not closed: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at 193-194 [33]. Ultimately, the object of the Court's jurisdiction to deal with abuses of process is to protect the integrity of its processes so that it can effectively discharge its functions: Williams v Spautz (1992) 174 CLR 509 at 518 and 520; Walton v Gardner (1993) 177 CLR 378 at 392-393. 50. The above statement in Stokes is a more concise statement of what French J (as he then was) said in Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275 at 279: The possible varieties of abuse of process are only limited by human ingenuity and the categories are not closed. … An attempt to litigate in the court a dispute or issue which has been resolved in earlier litigation in this or another court or tribunal may also, according to the circumstances, constitute an abuse of process even if not attracting the doctrines of res judicata or issue estoppel. Underlying the power that courts have assumed to stay or dismiss proceedings for abuse of process is a policy of preventing waste of judicial resources and their use for purposes unrelated to the determination of genuine disputes. There is, in my opinion, another element to be considered and that is the necessity to maintain confidence in and respect for the authority of the courts." 51. This issue, so far as it more specifically related to judicial proceedings following a arbitration under an enterprise agreement, was more recently addressed by Flick J in NSW Trains v Australian Rail, Tram and Bus Industry Union [2021] FCA 883 where His Honour noted: 78. It may be accepted that an arbitration of a dispute may preclude a party to that arbitration from later seeking judicial resolution of the same dispute. 79. In Energy Australia Yallourn Pty Ltd v Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union [2018] FCAFC 146, (2018) 264 FCR 342 for example, the dispute settlement clause in that agreement provided in cl 28 that where the Commission had "issued a decision, determination or direction under this clause, it shall be final and binding on the Parties, subject to the appeal process in accordance with sub-clause 28.3." In dismissing an appeal, Rares and Barker JJ concluded (at 364): [92] The Commission had jurisdiction and the primary judge was correct to find that the Full Bench's arbitral decision extinguished the controversy between Energy Australia, its employees and the five unions as to the dispute on the interpretation and application of cl 5.3 of the Yallourn agreement. In a separate concurring judgment, Flick J likewise concluded (at 372 to 373): [136] Energy Australia and the AMWU had agreed (for the purposes of the Agreement) to submit the matter in dispute between them to the "final and binding" determination of the Commission. It is difficult to see why such an agreement did not prevent the later institution of the present proceeding in this Court: cf Dobbs v National Bank of Australasia Ltd [1935] HCA 49; (1935) 53 CLR 643 at 652-653 per Rich, Dixon, Evatt and McTiernan JJ. Although the agreement between Energy Australia and the AMWU could not oust the jurisdiction of this Court, the agreement nevertheless "has legal significance in respect of the parties' dispute and their rights and liabilities": cf TCL Air Conditioner (Zhongshan) Company Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533 at [77] per Hayne, Crennan, Kiefel and Bell JJ. [137] To now permit Energy Australia to seek a contrary decision to that given by the Full Bench in January 2017 would constitute an abuse of process. The primary Judge was correct in so concluding: [2017] FCA 1245 at [163]. 80. The 2018 Agreement did not contain a provision whereby the parties agreed that the decision of the Commission would be "final and binding" on the parties. 81. But the absence of such words did not lead to any different conclusion in Linfox Australia Pty Ltd v Transport Workers' Union of Australia [2013] FCA 659, (2013) 213 FCR 479 at 492 ("Linfox v TWU'). The enterprise agreement there in issue contained a clause (cl 22) which provided that "any dispute or grievance ... shall be dealt with in the following manner...'' The clause went on to provide that if the matter was not resolved in a conciliation process undertaken by Fair Work Australia, Fair Work Australia "may proceed to arbitrate the dispute and/or otherwise determine the rights and/or obligations of the parties...'' Of this clause, Rares J concluded: The binding nature of the Full Bench decision [37] I also reject Linfox's argument that the omission of the words "final and" before binding in cl 22.2 of the enterprise agreement indicated the parties agreed that the Full Bench decision was susceptible to judicial review. The whole purpose of the dispute resolution procedure that s 186(6) required to be provided under the Act was to resolve disputes. For a resolution of a dispute to be binding upon the parties consistently with the purposes of the Act, in my opinion, it must create a final determination of the parties' dispute. Such a decision cannot conclusively determine the proper construction of the parties' agreements because such a decision can only be performed conclusively by a Ch III court. [38] But the parties consensually agreed that the private arbitrator, in the position of the Commission, or the Full Bench on appeal, had power to resolve their dispute by making a decision under clause 22.2. Such a decision was to have, in effect, the attributes of a private arbitral award. A long established incident of that process is that the arbitrator has power to decide finally all disputed questions of fact and law: Goode at 126; TCL at [92]. The arbitration would assist the parties to continue their relationship under their enterprise agreement with an outcome arrived at by the method of dispute resolution that they both had adopted, and which the Act contemplated they would have. The parties, for example, could have adopted a dispute resolution mechanism of simply allowing the Commission to resolve their disputes in accordance with its statutory functions, that is, not as a private arbitrator. But, the parties having chosen a method of resolution by private arbitration, the Court should be astute to uphold that bargain. 82. With reference to the facts of the present case, Step 4 of cl 8.4of the 2018 Agreement records an agreement between NSW Trains and the Union and the employees of NSW Trains (cl 5) to have a dispute of the present kind "arbitrated by the Fair Work Commission." The absence of words such as "final and binding", as in Linfox v TWU, leads to no different conclusion in respect to the finality of a dispute which has been the subject of arbitration by the Commission. 52. Accordingly, while the Applicant in these proceedings, Mr Tudor was not a named party to the FWC Proceedings or Appeal Proceedings, that does not mean that his attempt to re-litigate the same issues in these proceedings cannot be an abuse of process. Neither the fact that he was not a named party, nor the fact that the prior proceedings were in the nature of an arbitration, are a barrier to a finding that the Application is an abuse of process. 53. There can be no doubt that these IRC proceedings are an abuse of process given: (a) the Applicant seeks to re-litigate the same issue in the IRC as was determined in the FWC Proceedings and Appeal Proceedings being "the decision of Sydney Trains to remove the existing Gate Array Control known as the 'Garrison' or GAC Booth (GAC) from the paid concourse area of the Liverpool Railway Station in the south-west of Sydney (Liverpool Station) and install a 'Hub"'; (b) the repetitive nature of re-litigating the issues determined in the FWC Proceedings and Appeal Proceedings in the IRC is exacerbated by the fact that the IRC's role, if it were to substantively determine the Application, would be to undertake a de novo merits review of the PIN and not merely a review of the internal review decision and any error made in that decision; (c) the Applicant in these proceedings, Mr Tudor, was a witness for, and member of, the applicant in the FWC Proceedings and Appeal Proceedings; (d) the Applicant in these proceedings, Mr Tudor, drafted the PIN with the assistance of the RTBU, including Mr Toby Warnes, who were extensively involved in the FWC Proceedings and Full Bench Proceedings. The issuance of the PIN was clearly an attempt to sidestep the FWC Decision and the Full Bench Decision; (e) the Applicant in these proceedings, Mr Tudor, was at all material times an employee of Sydney Trains and bound by disputes resolved in accordance with clause 8.4 of the EA, including the Dispute; (f) a substantive hearing of the Application in these proceedings will undermine the confidence and respect for the authority of the FWC and, by implication, others tribunals, commissions and courts; and (g) a substantive hearing of the Application in these proceedings will result in a waste of the resources of the IRC (and Sydney Trains, a statutory corporation and NSW Government agency). 54. Accordingly, the Application ought to be dismissed in accordance with rule 13.4 of the UCPR. G. The GAC does not exist 55. On 17 May 2021, Sydney Trains contacted SafeWork NSW to have the PIN reviewed under section 100 of the WHS Act. Inspector Issa of SafeWork NSW attended Liverpool Station at about 3.20pm later that day. 56. The effect of Sydney Trains' request to SafeWork NSW was that the operation of the PIN was stayed until an inspector, in this case Inspector Issa, made a decision on the review of the PIN. 57. As a result, Sydney Trains pressed on with its proposed removal of the GAC as contemplated since October 2017 and permitted by the FWC Decision and Appeal Decision. 58. No prohibition notice under section 195 of the WHS Act was issued by an Inspector, nor was there some other notice or order directing Sydney Trains to not remove the GAC. 59. On the evening of Thursday, 20 May 2021, the GAC was demolished. 60. Inspector Issa's report in relation to his decision of 20 May 2021 was completed on 24 May 2021. 61. Regardless of whether the Inspector's Decision was made on 20 May 2021 when communicated to Mr Warnes or on 24 May 2021 when included in Inspector lssa's Report, the PIN did not operate to stop the demolition of the GAC as the PIN was either cancelled (if the Inspector's Decision was made on 20 May 2021) or stayed (if the Inspector's Decision was made on 24 May 2021). 62. Given that the GAC has been demolished, the relief sought in the Application, to affirm the PIN which says that Sydney Trains "must take all necessary steps to cancel the removal of the [GAC] at Liverpool Railway Station", would give effect to an absurdity with which Sydney Trains cannot comply (or, alternatively, would require Sydney Trains to do nothing as there are no steps that can be taken to cancel the removal of the PIN). The Application, on any view, lacks any utility. H. Frivolous and vexatious 63. The Application is vexatious and an abuse of process because, for the reasons addressed in paragraph 30 to 62 above (and particularly paragraph 53), it seeks to re­litigate a matter that has already been litigated and determined by both the FWC and the Full Bench. 64. In addition to the Application being frivolous, as a result of the relief sought in the Application and the fact that the GAC does not exist, the Application is lacking in seriousness or sense and is therefore frivolous and liable to struck out. 65. Further, given that there is no utility in obtaining the relief sought, as the GAC does not exist, the Application must have been brought with an intention to harass or annoy Sydney Trains or for some other ulterior purpose, including an industrial purpose. That also gives rise to the Application being vexatious. 66. Further again, irrespective of Mr Tudor's motive, the Application is so obviously untenable and manifestly groundless as to be utterly hopeless and therefore vexatious. I. Costs 67. As explained in paragraph 11 to 14, the IRC may award costs in these proceedings. 68. While the exercise of the IRC's power to award costs is discretionary, it is Sydney Trains' submission that: (a) the proceedings are frivolous and/or vexatious and/or instituted without reasonable cause within the meaning of section 181(2) of the IR Act and so the IRC can award costs in its discretion, exercised judicially; (b) the IRC should exercise its discretion to award Sydney Trains' its costs on an indemnity basis given: (i) the manner in which these proceedings have sought to re-litigate issues already determined by the FWC and the Full Bench of the FWC in proceedings in which the Applicant, while not a party, gave evidence and was bound. That is, the Applicant has clearly, and improperly, sought to conduct a quasi-appeal of the Full Bench Decision in a manner that undermines the confidence in, and integrity of, the industrial relations system and the authority of courts and commissions; (ii) the failure of the Applicant to withdraw the Application after having been put on notice of Sydney Trains' concerns as to the frivolous and vexatious nature of the Application; (iii) the Applicant is not unrepresented but, rather, represented by the same advocates that ran the FWC Proceedings and Full Bench Proceedings

Case for SafeWork

1. SafeWork relied upon affidavits from Mr Issa and Mr Allison as well as the following written submissions filed in the Commission on 30 September 2021 (footnotes omitted): 1. Richard Tudor (the applicant) has made an application under section 229(1)(b) of the Work Health and Safety Act, 2011 (NSW) (WHS Act) for an external review of a decision of SafeWork NSW. 2. The external review application concerns a merits review of the internal review decision of SafeWork NSW on 21 June 2021 (Internal Review decision) to confirm the decision of the Inspector Mostafa Issa (the Inspector) on 24 May 2021 made pursuant to section 102 of the WHS Act to cancel a Provisional Improvement Notice issued by Mr Tudor to Sydney Trains (the PIN). 3. In his external review application Mr Tudor seeks orders revoking the decision made by the Inspector to cancel the PIN and that the Internal Review decision be revoked, and affirming the decision to issue the PIN. 4. The respondent contends that the appropriate order be made by the Commission is to confirm the Internal Review decision. 5. The PIN was issued to Sydney Trains on the basis that Mr Tudor, in his role as a Health and Safety Representative (HSR), purportedly held a reasonable belief that Sydney Trains was contravening or had contravened a provision of the WHS Act in circumstances that made it likely that the contravention would continue or be repeated. 6. The PIN included directions as to the measures to be taken by Sydney Trains to remedy or prevent the contravention or likely contraventions, namely to take all steps to cancel the removal of the 'Garrison' at Liverpool Railway Station. 7. The PlN was purportedly issued by the Mr Tudor pursuant to section 90 of the WHS Act. 8. In opposing the external review application SafeWork NSW relies on the following material: a. affidavit of James Andrew ALLISON dated 10 September 2021 and Exhibit JA- 1; b. affidavit of Mostafa ISSA dated 23 September 2021 and Exhibit Ml-1; The legislative scheme for the review of an internal review decision 9. The Internal Review Decision was made in accordance with s 226(2)(a) of the WHS Act. 10. Pursuant to s 229(1) of the WHS Act an eligible person may apply to the Commission for review (External Review) of a reviewable decision made by the regulator or a decision made, or taken to have been made, on an internal review. 11. By virtue of s 229 of the WHS Act, the Commission is empowered to: a. confirm; b. vary; or c. revoke, the Internal Review Decision. 12. The resolution of an application for external review under s 229 of the WHS Act involves a merits review of the decision under review. 13. The External Review is not an appeal. It is not a matter in which the Commission has to determine whether there was error in the Internal Review decision. 14. In determining what order to make the Commission stands in the shoes of the decision­maker - in this case Mr Tudor. The Commission therefore has to determine the 'correct or preferable' decision having regard to all the evidence before it. 15. Further, the Commission's determination of whether the original decision maker could have formed a 'reasonable belief' is based on evidence: a. that was viewed and/or considered by the HSR at the time they issued a provisional improvement notice; and b. which is relevant to the issues in the matter and is not evidence based on opinion or hearsay. 16. Accordingly, material relied upon by the applicant in making his argument at this External Review in an attempt to justify his decision to issue the PIN, where that material: a. came into existence after the issuance of the PIN; and/or b. was not known, considered and/or used by Mr Tudor at the time the PIN was issued, is irrelevant for this External Review and should not be considered. 17. Therefore, the primary issue for determination by the Commission is whether on the objective evidence before the Commission, Mr Tudor had a proper basis to form a reasonable belief at the time of issuing the PIN that Sydney Trains was contravening a provision(s) of the WHS Act, or had contravened the provision in circumstances that made it likely that the contravention would continue to be repeated, to permit the issuing of the Notice (see: s 90(1)(a) & (b) of the WHS Act). Power to issue the PIN 18. Section 90(1) of the WHS Act provides that a provisional improvement notice can only be issued if a HSR reasonably believed that a person: (i) is contravening a provision of the WHS Act; or (ii) has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated. 19. Section 90(2) of the WHS Act provides that a HSR may issue a provisional improvement notice requiring the person to: (i) remedy the contravention, or (ii) prevent a likely contravention from occurring, or (iii) remedy the things or operations causing the contravention or likely contravention. 20. Therefore, in order for the power to be exercised for a provisional improvement notice to be issued, it requires the existence of facts that would lead a reasonable person to form the belief. Therefore, there must be an objective basis for the HSR to form a reasonable belief, that the person to whom the PIN is issued has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated. 21. The power granted to a HSR to issue a provisional improvement notice pursuant to section 90 of the WHS Act, is analogous to that granted to an inspector pursuant to section 191 the WHS Act. 22. This is made clear by the provisions of section 102(3) of the WHS Act which provides that a provisional improvement notice that is confirmed by an inspector is taken to be an improvement notice issued by the inspector under the WHS Act. 23. Therefore, in undertaking a review of a provisional improvement notice, the inspector appointed under section 101 of the WHS Act (this case Inspector Issa), was required form a reasonable belief as to the matters specified in section 90(1) and section 191(1) of the Act, in order to confirm the provisional improvement notice. 24. What is required to be considered in determining whether an inspector had a 'reasonable belief' (in the context of the issuing of a Prohibition Notice), was discussed by Chief Commissioner Kite in the decision in Growthbuilt Ply Ltd v SafeWork NSW (Growthbuilt). Chief Commissioner Kite noted that the question is not whether the inspector held a belief but whether such a belief was reasonable in the circumstances. Chief Commissioner Kite further stated that whether an inspector had a 'reasonable belief' is an objective test to be determined upon all of the relevant material that was, or should have been, available to the inspector after making reasonable inquiries. 25. The considerations applicable to the determination of whether there was an objective basis to form the relevant 'reasonable belief' pursuant to s.191 were discussed in Simon Anthony Green Wilkeen Ply Ltd T/as Razorback Glass v SafeWork NSW. In that matter Kite CC stated at paragraph [22] - [23]: Also in Growthbuilt I held that: (1) at [55], the test of "reasonable belief" was objective in relation to s 195 of the WHS Act; (2) at [57], the test requires the existence of facts "which are sufficient to induce that state of mind in a reasonable person": applying George v Rockett [1990] HCA 26; (1990) 170 CLR 104; (3) at [95], while an Inspector is not required to undertake a full investigation there is a requirement to make reasonable inquiries to establish or clarify the facts; and (4) at [96), "A reasonable and balanced approach does not allow an inspector to make assumptions and act on them without, at least, attempting to test, in a timely and practical manner, the validity of those assumptions." I see no reason to depart from these conclusions in relation to s 191 of the WHS Act. The respondent accepted the authority of Growthbuilt applied. 26. It is contented that, having regard to the basis upon which a HSR can issue a provisional improvement notice set out in section 90(1) and the effect of section 102(3), that the principles enunciated by Kite CC in Razorback Glass are applicable to the determination of this application. 27. Therefore, in issuing a provisional improvement notice, a HSR is required to balance the objective information available to him/her and is obliged to make reasonable inquiries to inform their beliefs. 28. A reasonable and balanced approach does not allow a HSR to make assumptions and act on them without, at least, attempting to test, in a timely and practical manner, the validity of those assumptions. 29. A HSR is not required to conduct a full investigation into the matter before forming the 'reasonable belief'. 30. Therefore, the Commission will have to determine on the objective facts before it at the hearing of the External Review application whether objectively there was sufficient material for a HSR, having made all due inquiries and having tested the validity of any assumptions relied upon, to have formed a reasonable belief that Sydney Rail was contravening the provisions of ss 19 and 20 of the WHS Act. 31. The use of the phrase 'is contravening' in s 191(1)(a) of the WHS Act, and the text of s 191(1)(b) in using the words 'has contravened' and 'contravention will continue' imports a temporal element that must be satisfied in order for a reasonable belief to be formed. That is there must be a demonstrable 'contravention' of the WHS Act at the time at which a provisional improvement notice is issued, or prior to the provisional improvement notice being issued, but in circumstances where that contravention will continue or be repeated. 32. SafeWork NSW contends that the objective evidence that was available to Mr Tudor, as a HSR, at the time he issued the PIN does not demonstrate any actual 'contravention' of any provision of the WHS Act by Sydney Trains at the time of the issuing of the Notice, nor circumstances in which a prior contravention had occurred which was continuing or likely to be repeated. Decision by Inspector Issa to revoke the PIN 33. The PIN was issued by Mr Tudor on 16 May 2021 in relation to the proposed removal of a structure known as a 'Gate Array Control' booth (GAC) - also referred to as a 'Garrison' at Liverpool Train Station. 34. On 17 May 2021, Sydney Trains made a request under section 101 of the WHS Act to SafeWork NSW to appoint an inspector to undertake a review of a Provisional Improvement Notice (PIN). 35. On 17 May 2021, Inspector Issa had a discussion with Mr Tudor to inquire into the circumstances that were the subject of the PIN. Inspector Issa informed Mr Tudor that he would attend at the workplace later that day. 36. On 17 May 2021 Inspector Issa attended Liverpool Train Station to inquire into the circumstances that were the subject of the PIN. 37. As part of those inquiries at the Liverpool Train Station, Inspector Issa took photographs and spoke with management representatives and relevant workers from Sydney Trains. This included three (3) Customer Service Attendant who worked at Liverpool Train Station. 38. After attending at the Liverpool Train Station, Inspector Issa spoke to Mr Tudor by telephone. However, Mr Tudor indicated that it was his day off work and that he was not able to discuss the PIN until he subsequently returned to work. 39. In the period between 17 May 2021 and 24 May 2021, Inspector Issa had further discussions with Mr Tudor as to the basis upon which he issued the PIN and the safety reasons that Mr Tudor relied upon to support the PIN. Inspector Issa also had discussions with an organiser from the RTBU who was representing Mr Tudor and CSAs about the safety issues relating to the Garrison. 40. In determining what action to take in regard to the PIN Inspector Issa considered the basis upon which it was alleged by Mr Tudor that Sydney Trains were contravening sections 19 and 20 of the WHS Act, in particular that the removal of the Garrison would: (i) Increase the risk to workers' security; (ii) Increase the risk of exposure to COVID-19; (iii) Increase the risk of exposure to extreme weather conditions; and (iv) Demonstrate that Sydney Trains retracted its commitment to keep the Garrison during the COVID -19 pandemic. 41. Inspector Issa considered the material made available to him in relation to each of those matters, and formed the following conclusions. Increase the risk to workers' security 42. Inspector Issa considered that as an alternative to the Garrison, which served as a 'safe space' during degradation mode and threatening scenarios, Sydney Trains provided workers access to the adjacent Station Duty Manager's office (SDM Office). Workers could access the SDM Office by using access passes which were used to sign in and off for work. He observed that workers did carry these passes on their person and there were visitor passes available in the SDM Office to provide to relief staff. Inspector Issa noted that workers did express a preference for the Garrison to remain as it provided, what they believed, to be a more effective customer service experience as patrons could see the Customer Service Attendants (CSAs) when they were in the Garrison. He noted that in the SDM Office workers could observe the live camera feeds, make announcements, and had access to a first aid kit. Inspector Issa considered it relevant to note that during normal operations, CSAs are not undertaking work in the Garrison, but rather encouraged to remain accessible and visible to patrons. 43. Inspector Issa considered that the SDM Office was an appropriate alternative to the Garrison to serve the function of the 'safe space'. 44. Whilst Inspector Issa acknowledged that two 'safe spaces' were better than one, it was his view that this point needed to be considered in light of the operational objectives behind the removal of the GAC, and the fact that the SDM office was adjacent to the GAC. Inspector Issa believed that this concern would have carried more weight if there had been two safe spaces at opposite ends of the concourse, and one of them was to be removed. Inspector Issa formed the view that in the circumstances of the GAC at Liverpool Train Station, the two available safe spaces were in close proximity to each other, albeit that workers' preferred one over the other. 45. On the basis of the above, Inspector Issa was not able to form a belief that workers would be exposed to an increased risk to their security because of the removal of the Garrison. Increase the risk of exposure to extreme weather conditions 46. In addition to the material relating to item 1, Inspector Issa considered in respect to this issue the fact that workers were provided with uniforms for different weather conditions. 47. Inspector Issa noted that if workers were exposed to extreme weather conditions, they could retreat to the SDM Office as they would have previously with the Garrison. 48. On the basis of the above, Inspector Issa was not able to form a belief that workers would be exposed to an increased risk of exposure to extreme weather conditions because of the removal of the Garrison. Increase the risk of exposure to COVID-19 49. In respect to this issue, Inspector Issa noted that as at 17 May 2021, the use of masks on public transport was no longer compulsory - yet it continued to be encouraged. 50. Inspector Issa noted that workers were unable to provide how the Garrison, and the manner it was being used, provided greater protection for COVID-19. In fact, neither of the workers he spoke with opted to wear a mask. 51. Inspector Issa noted that in any case, the SDM Office remained available and accessible to workers should workers wish to remove themselves from patron accessible areas. 52. Inspector Issa noted that physical separation, PPE, hand hygiene, symptom awareness, testing and an alternative safe space in the SDM office were all still available for workers to use in the midst of the COVID pandemic. Inspector Issa did not believe the GAC was ever intended to be the only strategy to be used in the management of COVID safety at Liverpool Train Station. 53. On the basis of the above, Inspector Issa was not able to form a belief that workers would be exposed to an increased risk of exposure to COVID-19 because of the removal of the Garrison. Demonstrate that Sydney Trains retracted its commitment to keep the Garrison during the COVID -19 pandemic. 54. In respect to this issue Inspector Issa noted that the risks associated with COVID-19 were being managed at a state level and workers were expected to maintain social distancing, stay at home if unwell, may wear masks should they wish and are encouraged to maintain hand hygiene. Inspector Issa considered that the risks of COVID-19 were being appropriately managed and that the planned removal of the Garrison, despite the prior commitment made by Sydney Trains, did not pose an increased COVID 19 risk to workers. Conclusion of Inquiries 55. Following a review of the PIN, and his inquiries into the circumstances that were the subject of the PIN, Inspector Issa was not able to form a reasonable belief that Sydney Trains was contravening sections 19 and 20 of the WHS Act in the manner alleged in the PIN. As a result he determined to cancel the PIN. 56. In particular, Inspector Issa formed his view on the basis that Sydney Trains had implemented other reasonably practicable control measures that were capable of eliminating or minimising the hazards and risks that it was alleged were controlled through the use of the GAC (Garrison). 57. Inspector Issa formed this view on the basis that the evidence that he obtained supported the view that during an event which would warrant a worker accessing the SDM office, that worker would have access to equipment allowing them to monitor the concourse and to provide instructions via the PA system. The primary objective that Inspector Issa considered was the safety of the workers in scenarios where workers sought to retreat to a safe space. 58. Inspector Issa was satisfied that the SDM office would achieve that purpose, whilst still providing the means for the CSAs to perform their role, albeit with some limitations such as no face-to-face contact. 59. Inspector Issa believed that the concerns relating to how this would impact the customer experience may be remedied with the introduction of new controls by Sydney Trains. 60. Therefore, on the material that Inspector Issa had at the time he made his decision, there was no proper objective basis for him to form a reasonable belief that Sydney Trains was contravening a provision of the WHS Act, had contravened a provision in circumstances that made it likely that the contravention would continue to be repeated. In those circumstances the correct and preferrable decision was to cancel the PIN. Decision on Internal Review 61. Inspector Allison was appointed under section 224 of the WHS Act as the internal reviewer of Inspector lssa's decision to cancel the PIN. 62. Inspector Allison considered all the evidence presented by the parties to the Internal Review, including the material relied upon by Mr Tudor which was attached as Schedule B to the Internal Review Application. 63. After considering that material Inspector Allison formed the opinion that Sydney Trains did not breach section 19 or 20 of the Act in proposing to (and subsequently removing) the Garrison at Liverpool Train Station. 64. Inspector Allison accepted that the Garrison was obsolete as its previous purpose of housing computers, etc., for the control of the superseded magnetic swipe tickets no longer existed with the introduction of the Opal card system. 65. Inspector Allison also noted that the evidence set out in the decision of the Fair Work Commission was that Garrisons were not present at all stations including significant stations such as Sydney Central, Town Hall, Wynyard, Circular Quay and North Sydney. 66. After considering that material Inspector Allison formed the opinion that the Hub system replacing the Garrison at Liverpool Train Station, augmented by other arrangements such as the use of the Station Managers Office when necessary for health, security or shelter could be considered reasonable. 67. Inspector Allison noted that sections 19 and 20 of the WHS Act were predicated on 'reasonable practicality', and as such he formed the view that it would seem impracticable for Sydney Trains to maintain both the Garrison and Hub systems. 68. On that basis, on 21 June 2021 Inspector Allison made a decision to confirm the cancellation of the PIN by Inspector Issa. 69. SafeWork NSW contends that the Internal Review decision was the correct and preferable decision based upon the objective material before the Internal Reviewer. Applicant's submissions 70. At paragraph 16 of the Applicant's submissions it is contended that Inspector Issa erred in his decision to cancel the PIN. The Commission would not accept that Inspector Issa erred in relation to the matters listed in paragraph 16 a.-f. 71. Further, in that regard SafeWork NSW notes that in an external review application it is not necessary for error in the initial decision to be demonstrated for the Commission to exercise its powers under the WHS Act. Conclusion 72. On the objective evidence before the Commission, the Commission would find that there was insufficient material for Mr Tudor and Inspector Issa, having made all due inquiries, to form a reasonable belief that Sydney Trains had or was contravening the provisions of s 19 of the WHS Act. 73. The Commission would find that there was no proper objective basis upon which Mr Tudor could have formed the requisite reasonable belief to issue the PIN under s 90 of the WHS Act. 74. The Internal Review decision should be confirmed and the decision to issue the PIN be set aside.

Case for Mr Tudor

1. Mr Tudor's witness statement dated 13 August 2021 and filed in the proceedings contained the following: Background 1. I hold the elected position Health and Safety Representative (HSR) for the South-West Wages Workgroup under the Work Health and Safety Act 2012 (the Act). I was elected as the HSR for this workgroup in December 2019. Prior to that election I was an elected Deputy HSR. 2. I am a member of the Australian Rail Tram and Bus Industry Union, NSW Branch (RTBU). 3. I hold the elected position of Macarthur Sub-Depot Delegate of the Customer Service Attendants Sub-Division of the RTBU. 4. I am 53 years old (d.o.b. 15 September 1967). 5. I am covered by the Sydney Trains Enterprise Agreement 2018 (the Agreement). 6. I am employed by Sydney Trains as a Customer Service Attendant (CSA). I commenced employment with RailCorp on 1 October 2002 as a Transit Officer until I progressed in 2003 into the role Security Control Centre Operator. ln 2007, I became a CSA. My home station is fixed at Liverpool Railway Station. Timeline of Provisional Improvement Notice 7. On 30 March 2020, Sydney Trains recognised the associated risks COVID-19 had on employees who work in the open customer environment. Sydney Trains introduced COVID-19 Temporary Ways of Working to ensure all staff were able to work in the safest way possible. These temporary measures encouraged station staff to utilise GAC Booths… 8. On 9 April 2020, Mr Christopher Walsh, Deputy Executive Director, sent an email to all Liverpool Station staff advising them Sydney Trains had committed to the RTBU that they will not proceed to remove the GAC Booth until after the Covid-19 pandemic situation… 9. On 16 April 2021, Sydney Trains met with the RTBU officials at a COVID-19 peak level meeting announcing their intention to remove the GAC Booth at Liverpool Railway Station soon. 10. On 13 May 2021, I wrote to Mr Walsh in my capacity of a HSR to enter consultation with Sydney Trains in relation to my reasonable belief that Sydney Trains were contravening s 19 and s20 of the Work Health and Safety Act 2011 (NSW) (WHS Act) by removing the GAC Booth from Liverpool Railway Station. I requested a response by 5:00PM, 19 May 2021. 11. On 14 May 2021, I received an email from my Customer Area Manager Mr Paul Bartolo regarding Sydney Trains intention to commence works to remove of the GAC Booth… 12. On 14 May 2021, Mr Trent Hunter Branch Organiser from the RTBU wrote to Mr Walsh advising him the RTBU have become aware Sydney Trains are intending to barricade the GAC Booth up with hoardings this weekend and will commence demolition if the GAC Booth the following week. Mr Hunter urged Sydney Trains to keep their commitment of retaining the GAC Booth and protect the health and safety of the employees as the COVID-19 situation is far from over. 13. On 14 May 2021, Mr Walsh responded to Mr Hunter advising him all covid restrictions have been rolled back or relaxed as a result of zero or low community transmission. Mr Walsh stated Mr Bartolo will continue to update Liverpool employees as the project progresses. 14. On 14 May 2021, I wrote to Mr Walsh acknowledging that I requested a response from him by 5pm, 19 May 2021, however I advised him I now hold a reasonable belief that Sydney Trains are intending to commence the removal of the Garrison this weekend. I urgently requested that he confirm in writing by 9pm on 14 May 2021, whether the Garrison at Liverpool Railway Station would be removed or decommissioned over that weekend. 15. On the same night Mr Walsh responded to my email confirming the GAC Booth would not be removed this weekend, however a temporary HUB would be installed for use by GSAs from 17 May 2021, and thereafter arrangements would be made to prepare for the removal of the GAC. Mr Walsh advised he intended to respond to my request by 19 May 2021… 16. On 16 May 2021, I became concerned as contractors began to start work on the demolition of the GAC Booth by removing equipment, fixtures and by putting up hoarding. As a HSR I could not risk waiting for Mr Walsh's response on 19 May 2021 and had no choice but to issue Sydney Trains a Provisional Improvement Notice (PIN). After I issued the PIN, l placed a copy of the PIN on the WHS notice board and on the GAC Booth… 17. On 17 May 2021, Mr Walsh confirmed receipt of my PIN and advised me Sydney Trains were liaising with SafeWork NSW that day… 18. On 18 May 2021, Mr Walsh emailed me responding to my request to consult under the WHS Act. Mr Walsh advised that SafeWork NSW had visited Liverpool Railway Station on 17 May 2021 and had informed that the Fair Work Commission decision gave them the right to remove the GAC Booth. 19. Mr Toby Warnes, (RTBU Director of Organising) responded to Mr Walsh advising him that the decisions from the Fair Work Commission have no bearing on whether a PIN should be issued. Mr Warnes reminded Mr Walsh that Sydney Trains and himself were obliged to comply with the PIN notice… 20. On 19 May 2021, despite the PIN being issued Sydney Trains completely decommissioned the Liverpool GAC Booth by putting hoarding all around it… 21. On 20 May 2021, despite the PIN being issued Sydney Trains commenced demolition of the GAC Booth… 22. On 20 May 2021, Mr Warnes emailed Mr Walsh advising him that work has commenced to remove the GAC Booth at Liverpool Railway Station and seeking the immediate cessation of the removal of the GAC given the presence of the PIN and concerns about the imminent safety risk. 23. Mr Walsh responded to Mr Warnes advising him that the SafeWork Inspector had visited the site and that no prohibition notice had been issued and the works would continue. 24. Mr Warnes advised Mr Walsh he must comply with the PIN unless an inspector attends and cancels the PIN, which had not occurred, and Sydney Trains may be in breach of s.99 of the WHS Act. Mr Walsh responded to Mr Warnes stating s.99 was not relevant. Mr Warnes advised Mr Walsh the Inspector had not reviewed the PIN or cancelled the PIN and the removal of the GAC needed to cease immediately until the PIN was resolved… 25. On 24 May 2021, SafeWork NSW Inspector Mr Mostafa Issa emailed me his Inspection Report with his decision to cancel the PlN I issued on 16 May 2021. It is noted before his report came down after Sydney Trains removed the GAC Booth… 26. On 7 June 2021, I lodged an application to SafeWork NSW seeking an internal review of Mr lssa's decision… 27. On 21 June 2021, Mr Jim Allison (Manager SafeWork NSW Governance and Appeals Unit) provided me with an outcome letter confirming the decision to cancel my PIN in relation to the removal of the GAC Booth at Liverpool Railway Station… GAC Booth 28. The GAC Booth has been at Liverpool Railway Station since the opening of the concourse approximately 21 years ago. 29. I have attached a copy of the Transport for NSW ESB 004 Engineering Standard Stations and Buildings - Station Design Standard Requirements… where I have extracted the following about the purpose of a GAC Booth: ''The GAC Booth must: • Be provided at stations requiring the direct supervision of the ticket barrier • Include a small bench/work area and ergonomic seat to accommodate two computers and communication facilities for each attendant responsible for the coordination of the ticket barrier operation, train location system, remote toilets locking facility and SPI. • Depending on the station category and staffing arrangements, the GAC Booth may need to be increased in size to store timetables and other CityRail literature for general passenger information. • Maximise the extent of glazing for optimal passive surveillance. • Maximise the extent of glazing for easy recognition of staff by passengers. • Be compact. This will encourage the staff members to leave the booth and actively supervise and help passengers in the vicinity of the ticket barrier. It is not intended that the GAC attendant(s) remain in the booth for the duration of the shift. In the event that the ticket barrier attendant feels under threat, staff can retreat to the booth and activate a duress alarm button." 30. The GAC Booth at Liverpool Railway Station was a compact solid glass booth that includes a bench/work area and ergonomic seat to accommodate computers and communication facilities for station staff responsible for the coordination of the ticket barrier operation, train location system, remote toilets locking facility, SPI and customer service. 31. The purpose, since the introduction of opal cards in 2013, of the GAC booth is to allow station staff to safely perform their duties of assisting with passenger flow, monitoring and operating gate line and providing customer service. All the equipment workers used to perform these duties and function was located inside the GAC Booth. 32. The GAC Booth provided workers with a physical barrier between them and customers when they are agitated, angry, hostile, or upset. It had a duress alarm inside to alert the relevant authorities when workers were in danger or felt under threat. 33. The GAC booth is not intended for staff to remain inside for the duration of the shift, however it is used in the event staff ever feel threatened, they can retreat to the booth and continue to work safely behind a physical barrier and activate the duress alarm button. 34. The GAC Booth was heavily relied on when the network was in degraded mode. Degraded mode means when trains are not running on timetables and has caused significant delays and/or cancellation of services. The GAC Booth protected workers from overcrowding and abusive customers. An example from 2018 was when there were significant train delays which led to extreme overcrowding, our Station Duty Manager Mr Jesse Baldwin gave feedback to CAM Ms Suzanne Strike on 30 July 2018 describing the GAC Booth as a "god send" and how it protected staff from abuse and violent customers… 35. The GAC Booth had an air conditioning unit to ensure station staff were not exposed to extreme weather conditions. It allows workers to cool down in the extreme heat and warm up in extreme cold whilst continuing to perform their duties… HUB 36. The HUB which replaced the GAC Booth is an open work bench with no physical barrier around it. Most of the equipment from the GAC Booth was relocated inside the HUB. The equipment that was not transferred to the HUB include: * The Digital Voice Announcement (DVA) system; * Additional screen for the purpose of watching the Station Passenger Information (SPI); * Air conditioning unit; * Printed Timetables for customers; * Duress alarm button; and * The physical barrier. … 37. The HUB places workers at greater risk of assault and abuse. This is because of the open work bench with no physical barrier around it. The only safety mechanism workers have is to retreat to the Station Duty Managers (SDM) office where they will need to use their card to gain access to. Whereas the GAC Booth workers can lean into the door and go straight into the GAC Booth and lock it from the inside or could alternatively perform their duties with the GAC Booth with the physical protection. 38. The HUB forces employees to be physically exposed in degraded mode or overcrowding situations by having their backs turned on customers. 39. The HUB was installed to replace the functions of the GAC Booth but significantly reduced workers safety and placed them at risk. 40. When Sydney Trains commenced consultation in 2017 regarding the introduction of the HUB and removal of the GAC Booth, during consultation Sydney Trains agreed to allow a third option of installing the HUB while retaining the GAC Booth… 41. On 5 February 2018, when Sydney Trains were proposing to remove the GAC Booth and introduce the HUB they conducted a risk assessment. The overall rating is a "B" and the GAC Booth was listed as a preventative control… 42. As with Liverpool Railway Station, Sydney Trains have also proposed to introduce a HUB and remove the GAC Booth at Campbelltown Railway Station. Sydney Trains conducted a risk assessment on 26 April 2018 where it rated a "B" - the same as Liverpool Station. Campbelltown retained its GAC Booth and installed a HUB to compliment it… 43. I have attached a copy of the Southwest Local Issue Resolution Forum (LIRF) minutes from 29 April 2021... At agenda item 5.1 it states the risk assessment for the removal of the GAC Booth was completed on 5 February 2018, but it was still in draft and not finalised. Despite this Sydney Trains still proceed with removing the GAC Booth. Inspectors Report and SafeWork Decision 44. The Inspector Mr Issa made findings of fact in his report that I believe were not correct. These include: a. As the HSR who issued the PIN, he did not afford me the opportunity to accompany him during his visit to Liverpool Railway Station; b. According to his report, the persons he spoke with did not include any impacted workers or Customer Service Attendants in my workgroup. Mr Issa only named: * Mr Paul Bartolo - Customer Area Manager; * Mr Geoffrey Went - Safety Professional; and * Mr Anand Prasad - Station Duty Manager. The persons spoken too by Mr Issa were not impacted by the removal of the GAC Booth and do not belong in the Wages South West Workgroup. I believe the report is heavily influenced by the managerial staff spoken to by Inspector Mr Issa. c. The Inspector throughout his report refers to CSAs as officers; d. The Inspector assumes that CSAs are able to continue their primary function of customer service and barrier duties from SDM's office; Increase the risk to workers' security. 45. The Inspector in his report stated that the removal of the GAC Booth did not increase the risk of workers' security. I strongly disagree with his opinion as the HUB which replaced the GAC Booth places workers at a much greater risk of assault and abuse. The inspector assumes that CSAs do not perform work inside the GAC Booth which is far from the truth. We used to work inside the GAC Booth and outside on the concourse. Most of the equipment now located in the HUB was located in the GAC Booth, along with other tools used in CSA duties such as first aid kits, spare flags, timetable booklets, customer service brochures, emergency cabinet for safe working equipment, sharps containers, cleaning equipment, emergency extendable barricades, track work signage and a chair. 46. The HUB forces workers to be physically exposed and have their back turned-on customers. The Inspector has not taken into consideration that we worked inside the GAC Booth. I believe he would have been aware of this if had he interviewed any staff effected by the PIN. 47. Sydney Trains used to have two safe places where workers can retreat into when exposed to danger. By removing one of them has increased the risk to workers security as it reduced the number of places employees can retreat too. 48. The Inspector stated that work could be performed inside the SDM office. This is incorrect. Sydney Trains will not allow CSAs to perform any work inside the SDM office and expects workers to conduct those duties in the open customer environment standing at the HUB. Previously, the GAC Booth could be used to safely perform work in any scenario. It is noted that Sydney Trains in its own Customer Initiated Violence Safe Working Instruction states that the use of GAC Booths is a control measure to protect workers from customers... Increase the risk of exposure to COVID-19 49. The Inspector was incorrect to assert the removal of the GAC Booth would not increase the risk of exposure to COVID-19. Everything I have heard from Health experts and from Sydney Trains is that COVID-19 poses an increased risk to workers health and safety in environments where there is no physical barrier between them and other people. I accessed the website of https://www.safeworkaustralia.qov.au/covid-19-information-workplaces/industry-information/public-transport/physical-distancing on 12 August 2021 and extracted the following: "COVID-19 spreads from person to person through contact with droplets produced when an infected person coughs or sneezes. The droplets may fall directly into the person's eyes, nose, or mouth if they are in close contact with the infected person. A person may also be infected if they touch a surface contaminated with the droplets and then touch their mouth, nose or eyes before washing their hands." … The GAC Booth is a solid glass booth which physically separates workers from other people on the concourse. It may serve many critical functions like: • Intercepting droplets that transmit the virus; • re-enforcing the need for physical distancing; and • preventing particles entering the breathing zone of another. 50. I accessed the website of https://www.nsw.qov.au/covid-19/safe-workplaces/workers on 12 August 2021 where I extracted the following: "Review the workplace environment and where reasonably practicable ensure physical distancing of at least 1.5 metres between workers and others. For example: * install physical barriers such as plexiglass between workers and/or customers where appropriate." … 51. The GAC Booth physically fitted into an overall infection prevention and control strategy to protect workers from contracting the virus. 52. The HUB which replaced the GAC Booth is designed for the open customer environment and provides no level of protection when it comes to COVID-19. 53. The use of physical glass and perspex barriers have become a common place in society, particularly in customer facing roles since the onset of the pandemic in March 2020. For example, customer service staff at Woolworths, Coles and Aldi have screens between them and customers. Increase the risk of exposure to extreme weather conditions 54. The Inspector was incorrect to assert the GAC Booth does not decrease workers risk and exposure to extreme weather. Sydney Trains expects workers to stand at the HUB in the open customer environment regardless of weather conditions. Therefore, the worker would experience whatever weather the station was experiencing. 55. The GAC Booth had an air-conditioning unit which allowed workers to cool down in extreme heat or warm up in extreme cold whilst continuing to perform their duties. 56. Liverpool is located in the South-West of Sydney which can reach over 45 degrees in summer and below 8 degrees in winter. The HUB cannot substitute what the GAC provided. 57. The SDM office would be a place where employees can rest but not a place where they can perform their duties from. 58. The quality of Sydney Trains uniform is generally of low quality and CSAs are prohibited to wear shorts in the summer adding to the heat stress experienced by workers at Liverpool Railway Station. Demonstrate that Sydney Trains retracted its commitment to keep the Garrison during the COVID -19 pandemic 59. Sydney Trains gave a commitment to all workers that it would not remove the GAC Booth until the after COVID-19 pandemic situation was resolved. 60. Clearly the COVID-19 pandemic is not over. The rationale of the GAC Booth through the pandemic was to ensure a physical barrier was present to protect workers from contracting the virus. 61. By Sydney Trains removing the GAC Booth it has increased the risks of COVID-19 to workers at Liverpool Railway Station. 62. It appears to me from the Inspectors Report and the finding of the internal review that the Inspector and SafeWork NSW Internal Review made their decision heavily influenced by managerial staff and based on the decision from the Fair Work Commission. Internal Review 63. During the internal review I was never contacted by SafeWork NSW to provide any additional evidence, commentary, or clarification. 64. I strongly believe Sydney Trains did not show the due diligence when designing and implementing the HUB to replace the GAC Booth. I believe it goes against the Safe Design Code of Practice… COVID-19 Delta Variant 65. Unfortunately, the state of NSW is currently going through the worst outbreak of the COVID-19 pandemic due to the Delta Variant. The Delta Variant is more severe and more transmissible than the original strain of COVID-19. I accessed the website of https://www.abc.net.au/news/2021-08-03/covid-delta-danger-sees-experts-prepare­for-hospital-surge/100334558 on 12 August 2021 and have attached a copy the article explaining how the Delta strain is more severe as well as being harder to contain… 66. I accessed the website of https://www.health.nsw.gov.au/lnfectious/covid- 19/Pages/stats-local.aspx on 12 August 2021 where I extracted data showing how Southwestern Sydney so far has 2,113 confirmed cases of COVID and Liverpool LGA alone have 462, including several deaths… 67. Since Sydney Trains removed the GAC Booth from Liverpool Railway Station the COVID-19 situation has worsened drastically and working in the open customer environment is becoming increasingly risky. Even though there are less passengers using the trains, there are still people coming in and out of Liverpool Station. 68. Due the significant risks associated with the Delta Variant Sydney Trains reintroduced the temporary ways of working that were in place for the first outbreak early 2020. They advised staff to utilise physical rooms like GAC Booths to protect themselves... 69. On 6 July 2021, Sydney Trains were issued an improvement notice from SafeWork NSW which stemmed from issues raised by Mr Ranjiv Pentiah (CSA and HSR, Lidcombe Station). Mr Pentiah directed a cessation of duties due to no GAC Booth available for staff in the West Wages Workgroup. The Improvement Notice stated that Workers/Other persons may be exposed to a risk to their health or safety as control measures in place to address the risks posed by Covid-19 have not been reviewed since the emergence of the Delta variant of the Covid-19 virus… 70. Following the Improvement Notice Sydney Trains were obligated to carry out a review of control measures in place to address risks posed by the Covid-19 Delta Strain in the West Area… 71. Because of the high risk of the Delta Variant spreading across the Sydney Trains network, Sydney Trains have taken precautionary measures by significantly reducing station staffing levels. This was done to protect employees and reduce the risk of spread… 72. On 26 July 2021, I emailed Mr Jeric Cani (my manager) advising him that staff do not feel safe working in the open environment on the concourse at Liverpool at this time due to the many risks associated with the Covid-19 Delta variant. Mr Cani introduced temporary measures allowing working on platform one instead of on the concourse…
2. Mr Tudor also prepared a reply statement dated 20 October 2021 in which he took issue with a number of the factual assertions contained in the affidavits of Mr Walsh, Mr Issa and Mr Allison. Mr Tudor's reply statement concluded as follows: 25. I understand that Sydney Trains says I have brought this case for some improper purpose. I deny this. The only reason I have stuck my neck out and brought this case is because I wish to exercise my right of review as an HSR for my work group to overturn decision I believe were wrong and to have the Commission make a decision which will ensure that the health and safety of members of my work group is assured. l am taking these proceedings to make sure that members of my work group are protected and in the interests of ensuring their health and safety.
3. Mr Tudor also relied written submissions filed in the Commission on 22 September 2021 by the RTBU which contained the following (footnotes omitted): Nature of the Commission's review 25. The decision of the internal reviewer is a reviewable decision pursuant to s 229 Item 1 of the Act. Mr Tudor is an eligible person as provided by s 229, Item 1 of the Act as he is: (1) a worker whose interests are affected by the decision of the internal reviewer; and (2) he is an HSR representing the interests of other workers. Therefore, Mr Tudor is an eligible person who may apply to the Industrial Relations Commission pursuant to s 229 of the Act. It is submitted that there are no impediments to Mr Tudor's standing to bring these proceedings. 26. As was observed by Kite J in NSW Rural Fire Service v SafeWork (2016) 257 IR 467 at (70] and [71], the nature of the review to be undertaken by the Commission is that of a merits review: 70 Looked at in this context it seems to me that the legislature intends that the Commission will undertake a merits review. The fact that written reasons are required to be provided to the applicant following the internal review is not enough by itself to suggest that the review by the Commission is to be directed to simply the identification and correction of error. The legislation shows, through the multi-level process for the determination of work groups, an evident importance which suggests that the review by the Commission is intended to permit the arrival at a final and correct result. Either at first instance or on appeal in an appropriate case. 71 I am reinforced in this view by the conclusion of Staff J in the AFMEPKlU case. His Honour was considering a decision of a different kind however he concluded at [50]: The power granted to the Commission under s 229(4) of the WHS Act is to conduct a merit review. That is, to "confirm, vary or revoke" the decision being reviewed so as to determine what is the correct or preferable decision. Accordingly, the Commission "stands in the shoes" of the decision-maker and may only exercise those powers that were available to that decision-maker. 27. In Sydney Trains v SafeWork (2017) 266 IR 276 at [23], Newall C adopted Kite J's characterisation of the review as that of hearing de novo. This conclusion was reached by Newall C, despite the Commission being limited to confirming, varying or revoking the internal review decision. At [28] the Commissioner stated: Consistent with the conduct of a de novo hearing, I proceed on the basis that the Commission is to come to the decision that it thinks correct and preferable in relation to the initial decision made by the inspector. That will in practical terms mean that the Commission decides the issue between the parties agitated under, in this case, s 72 of the Act. 28. It is observed that in a de nova hearing, the party succeeding below enjoys no advantage in the instant proceedings: Drake Personnel Ltd (tas Drake Industrial) v WorkCover Authority (NSW) (1999) 90 IR 432 at 439 citing Sweeney v Fitzhardinge (1906) 4 CLR 716. … 30. Sydney Trains have since removed the GAC on or about May 2021 for reasons that include: a. desiring to create an aesthetically pleasing environment b. creating an open environment for customers of Sydney Trains to interact more readily with CSAs and other station staff. 31. It is widely accepted that employees of Sydney Trains are routinely exposed to occupational violence in the course of their employment, arising from members of the public. 32. We submit that Sydney Trains as the PCBU did not adequately review control measures to prevent customer-related violence. The GAC provides a physical barrier between employees of Sydney Trains when incidents of violence or aggression occur. 33. That Sydney Trains have sought to 'modernise' the appearance of its stations by the removal of the GAC, it does not override its obligation to ensure the health and safety of its staff. 34. In Sydney Local Health District v SafeWork NSW [2019] NSWIRComm 1072, Murphy C found at [57] that where workers are exposed to an immediate risk to their health and safety from occupational violence, that the removal of the counter desks for nursing staff posed a serious risk to their health and safety. 35. This matter before the Commission is analogous: the removal of the GAC is similarly analogous to the removal of the nursing counter and is equally likely to contravene the provisions of the Act. 36. We submit that the Commission reject the findings of the SafeWork Inspector's report and in so doing, affirm that the PIN issued by Mr Tudor was valid and make orders requiring the PCBU to reinstate the GAC on all station platforms affected by the removal of previous structures.
4. In addition, Mr Tudor relied on the following written submissions filed in the Commission on 20 October 2021 on Sydney Trains' motion to dismiss the proceedings (footnotes omitted): Applicant's submissions on the Intervener's Motion Introduction 1. These proceedings involve an external review of a decision of an internal reviewer under s 226 of the Work Health and Safety Act 2011 (NSW) (WHS Act) to confirm a decision of an Inspector appointed under s 102 of the WHS Act to inquire into a provisional improvement notice (PIN) issued by Richard Tudor, a health and safety representative (HSR) elected pursuant to Division 3 of Part 5 of the WHS Act to represent a work group encompassing employees of the Intervener. The proceedings were listed for hearing on 12 November 2021 and were programmed to proceed to hearing on that day. Instead of allowing the proceedings to take their ordinary course and be determined on the merits, the Intervener filed a Notice of Motion seeking the exercise of the exceptional power under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) that the proceedings be summarily dismissed. The Intervener's Motion, in which it has taken the extraordinary step of threatening Mr Tudor - one of its employees and an HSR for a group of its employees, seeking to exercise, in good faith, his powers and rights under the WHS Act for the benefit of his work group - with costs, is fundamentally misconceived and premised on the fallacious proposition that matters determined in proceedings before the Fair Work Commission which concluded over a year before the issue of the PIN are determinative of the merits review the Commission is required to undertake under s 229 of the WHS Act. 2. The Motion should be dismissed and a new hearing date set. The Motion is bereft of substantive merit. It was filed unnecessarily and seemingly with a view to intimidating Mr Tudor into abandoning the proceedings and cowing him in his attempts to exercise his rights under the WHS Act as an HSR. It has had the unfortunate consequence of railroading the hearing date. The filing of the Motion and threatening of costs is conduct unbecoming a statutory corporation and NSW Government agency. The Intervener should be ordered to pay Mr Tudor's costs of the motion. 3. The submissions first set out relevant matters of background. Principles concerning the summary disposal of proceedings under r 13.4 are then collected. The statutory context of the present review under the WHS Act is then set out. The Intervener's contentions on the Motion as then considered. Background 4. As alluded to above, Mr Tudor is a health and safety representative (HSR) elected pursuant to Division 3 of Part 5 of the WHS Act to represent a work group encompassing employees of the Intervener who perform work as station staff at Liverpool Railway Station. In 2018 and 2019 there had been industrial disputation between the Australian Rail Tram and Bus Industry Union, NSW Branch (RTBU) and the Intervener in relation to the proposed removal of the Gate Array Control (GAC) at Liverpool Station. That dispute led to dispute proceedings under s 739 of the Fair Work Act 2009 (Cth) (FW Act) in the Fair Work Commission which were determined by Bull DP on 9 April 2020 on the basis that the proposed removal of the GAC was not contrary to clause 35 of an enterprise agreement which covered and applied to the Intervener, its employees and the RTBU. 5. The proceedings before the Deputy President had concluded on 10 March 2020, when His Honour reserved its decision. The day following Deputy President reserving his decision, the World Health Organisation declared Covid-19 to be a global pandemic. Whilst the Deputy President's decision was reserved, the Intervener: (i) directed its staff to use the GAC as a safe space to work from; (ii) undertook to the RTBU, who represented the industrial interests of workers who performed work at Liverpool Station and who were members of Mr Tudor's work group that the GAC would not be removed until after the Covid-19 pandemic. 6. On 9 April 2020, Bull DP handed down his decision, dismissing the RTBU's application and concluding that the Intervener had 'complied with its safety obligations' and that removal of the GAC was otherwise a reasonable exercise of managerial prerogative. Relevantly for present purposes, no evidence was adduced before the Deputy President as to the use of the GAC following the declaration of the global Covid-19 pandemic nor in relation to the Intervener's commitment to retain the GAC until the Covid-19 pandemic had ended. It is notorious that the Covid-19 pandemic has not ended and continues to afflict each State and Territory of the Commonwealth to this day. 7. The RTBU appealed the Deputy President's decision. A Full Bench of the Fair Work Commission refused the RTBU permission to appeal and dismissed its appeal on 2 September 2020. An application under s 607(2) to the FW Act was made by the RTBU to adduce further evidence on the appeal concerning the circumstances of the Covid-19 pandemic and the use of the GAC in the context of the pandemic. This was refused by the Full Bench. 8. Following the decisions of Bull DP and the Full Bench, the Intervener (quite properly and consistently with its obligations under ss 19-20 of the WHS Act) maintained its commitment and undertaking not to proceed to demolish the GAC during the pendency of the pandemic. This was until 16 April 2021 when the Intervener announced - peremptorily and whilst the Covid-19 pandemic remained (albeit having temporarily abated in the Sydney metropolitan area) - that it was going to remove the GAC. 9. Thereafter, Mr Tudor wrote to a representative of the Intervener, Christopher Walsh in his capacity as an HSR and requested the Intervener to consult. The Intervener, as a person conducting a business or undertaking (PCBU) was required to consult with workers at Liverpool Railway Station pursuant to ss 47 and 49 of the WHS Act about the removal of the GAC during the Covid-19 pandemic given that it was a matter that related to work health and safety and directly affected those workers. The nature of the consultation required was that detailed by s 48 to the WHS Act. The Intervener (in defiance of its obligations under Division 2 of Part 5 to the WHS Act) failed to consult and instead commenced arranging for the demolition of the GAC. 10. Mr Tudor then informed Mr Walsh that if works were underway to demolish the GAC, he would exercise his powers as an HSR to issue a provisional improvement notice (PIN). 11. On 16 May 2021, Mr Tudor exercised his powers under Division 7 of Part 5 of the WHS Act and issued a PIN to the Intervener. Mr Tudor had, at this time, formed a belief that the Intervener was not complying with its duties under ss 19 and 20 of the WHS Act to ensure, so far as reasonably practicable, the health and safety of workers at Liverpool Railway Station and the health and safety of other persons who used the railway station under s 19(2) of the WHS Act, by determining to proceed immediately to demolish the GAC. That belief was based upon the following objective circumstances: (i) the GAC was a solid glass booth, and an area where staff could work and maintain physical separation from customers and other persons passing through the station; (ii) removal of the GAC would entail that staff would work in circumstances where they would be more likely to and thus unnecessarily come into contact with customers and other persons passing through the station; (iii) this would increase the risk of the transmission of Covid-19; (iv) the Intervener had recognised the utility and necessity of the GAC as a measure to mitigate the risk of transmission of Covid-19 by undertaking to maintain it throughout the pendency of the pandemic. 12. Mr Tudor concluded that the Intervener was, therefore, failing to comply with its obligations: (i) under s 19(1) of the WHS Act to ensure, so far as reasonably practicable, the health and safety of workers engaged by it to work at its business and undertaking at the Liverpool Railway Station whilst they were at work, including by failing to comply with the specific obligations imposed by ss 19(3)(a), (c) and (e); (ii) under s 20(2) to ensure that the station was without risks to the health and safety of any person; (iii) under s 19(2) of the WHS Act to ensure, so far as reasonably practicable, the health and safety of other persons. 13. Whether Mr Tudor had such a belief (which is unlikely to be seriously in contest) and whether there were reasonable grounds for such a belief are matters that fall to be determined at the final hearing. 14. The PIN required that the Intervener cease removal of the GAC at Liverpool Railway Station in the period 16-25 May 2021. In other words, the PIN did not prohibit for perpetuity the removal of the GAC. Rather, it was temporally confined. 15. Mr Tudor displayed the PIN at the workplace in accordance with s 97 of the WHS Act on a work health and safety noticeboard and on the GAC. 16. Section 99 of the WHS Act required the Intervener to comply with the PIN. A failure to comply with the PIN constituted an offence under s 99(2) of the WHS Act. As the Commission has previously observed, PINs are presumptively valid and HSRs are presumptively entitled to expect compliance with them. 17. On 17 May, the Intervener requested a review of the PIN pursuant to s 100 of the WHS Act. Section 100(2) operated to stay the operation of the PIN until the decision under review was made by an inspector. On 17 May, Inspector Issa (who was an inspector appointed by SafeWork to review the PIN) commenced his inquiries into the health and safety matter the subject of the PIN. 18. On 20 May 2021, and prior to Inspector Issa issuing his decision, the Intervener ploughed ahead with its plan to remove the GAC. It did so notwithstanding that Mr Walsh had been informed that removal should not occur pending resolution of issues concerning the PIN. The Intervener elected to run the gauntlet and haughtily demolished the GAC prior to any decision being issued by Inspector Issa and before the process of reviews available under Part 12 of the WHS Act had concluded. 19. On 24 May, Inspector Issa issued his decision, cancelling the PIN. 20. On 7 June 2021, Mr Tudor exercised his right under s 224 of the WHS Act to apply for an internal review of Inspector Issa's decision. Mr Tudor had standing to apply for such a review pursuant to Item 4 of s 223(1) of the WHS Act. 21. On 21 June 2021, the internal review, Jim Allison who was the manager of SafeWork's Governance and Appeals Unit determined Mr Tudor's application. He did so without making any further inquiries or otherwise speaking to Mr Tudor. Mr Allisson's decision was contained in a letter sent to Mr Tudor. It did not expressly state that he had determined under s 227(2)(a) of the WHS Act to confirm Inspector Issa's decision. However, Mr Allisson endorsed Inspector Issa's conclusions and otherwise advised Mr Tudor of his right to seek an external review before the Industrial Relations Commission under s 229 of the WHS Act. 22. These proceedings were then commenced by Mr Tudor. Mr Tudor's purpose in these proceedings has always been to have his claim adjudicated, that is, to have the Commission determine that the PIN was validly issued and to convince the Commission to make orders ensuring the health and safety of the workers he represents in his work group at Liverpool Railway Station during the pendency of the Covid-19 pandemic. In Mr Tudor's view, the health and safety of workers at Liverpool Railway Station has been put unnecessarily at risk by the Intervener's underhand tactic of peremptorily withdrawing its commitment to maintain the GAC during the Covid-19 pandemic. Rule 13.4 of the UCPR 23. There is no dispute that r 13.4 of the UCPR applies to proceedings before this Commission, as articulated in the Intervener's submissions filed 28 September 2020 (AS) at [8]. 24. The power conferred by r 13.4 of the UCPR is, as Bellew J detailed in Lazarus v ICAC [2015] NSWSC 1265, an exceptional one that is only appropriately exercised where a claim is so clearly deficient that it would be inappropriate to allow the proceedings to continue. 25. The exceptional power conferred by r 13.4 is discretionary and exercisable only if the Commission is satisfied that: (a) the proceedings are frivolous or vexatious; or (b) no reasonable cause of action is disclosed; or (c) the proceedings are an abuse of process. 26. It is a power that ought be exercised sparingly and with caution. 27. The adjective 'frivolous' in the context of r 13.4 refers to a proceeding which, on its face, discloses no cause of action. Alternatively expressed, a matter will be frivolous where it is without substance or is groundless or fanciful. 28. The term 'vexatious', as detailed in Attorney-General v Wentworth (1988) 14 NSWLR 481, was explained by Mansfield J in Rana v Commonwealth of Australia [2013] FCA 189 as follows: Proceedings have been held to be "vexatious" in the past if they are instituted with the intention of annoying or embarrassing the person against whom they are brought: they are brought for collateral purposes, and are not for the purpose of having the court adjudicate on the issues to which they give rise; irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless; or they are scandalous, disclose no reasonable cause of action, are oppressive, are embarrassing, or are an abuse of the process of the court ... It has also been pointed out that "vexatiousness" is a quality of the proceeding rather than a litigant's intention so that the "question is not whether they have been instituted vexatiously but whether the legal proceedings are in fact vexatious": Re Vernazza [1960] 1 QB 197 at 208... 29. The test for whether or not a reasonable cause of action is disclosed was classically stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125: The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion... It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not be denied access to the customary tribunal which deals with actions f the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its power of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense"... 30. Dixon J (as he then was) in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 put the test succinctly as to whether or not a reasonable cause of action is disclosed in the following terms: ... But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action ... 31. Some caution should be exercised in applying the principles enunciated in Spencer v Commonwealth of Australia (2010) 241 CLR 118, given the different terms in which s 31A of the Federal Court of Australia Act 1976 (Cth) is expressed as compared to r 13.4 of the UCPR (and its mirror provision in respect to summary judgment r 13.1). 30. The abuse of process alleged by the Intervener is premised on the asserted re-litigation of previous proceedings by Mr Tudor: AS [47)-[53]. For the reasons detailed below, that contention is fundamentally misguided. However, it is important to bear a number of principles in mind. 31. First, the decision to dismiss a proceeding in whole or in part on the basis that it is an abuse of process involves the exercise of discretion. 32. Second, the onus of establishing an abuse of process lies on the party alleging it. 33. Third, either of two conditions precedent must be established by the moving party: (1) the use of the court or tribunal's procedures occasions unjustifiable oppression to a party; or (2) the use of those procedures brings the administration of justice into disrepute. The AS do not properly grapple with these matters or identify which of the two condition precedents are relied upon. 34. Fourth, in the context of an asserted abuse of process arising from an attempt to re-litigate matters which are said to have been determined in antecedent proceedings, the remarks of the plurality in the High Court in Tomlinson v Ramsey Food Processing Pty Limited 256 CLR 507 should be borne in mind: Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel. Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. (emphasis added) Statutory context under the WHS Act and the questions for the Commission 35. In assessing the Intervener's contentions about the re-litigation of matters said to have been determined by the Fair Work Commission, it is critical to analyse a number of salient provisions of the WHS Act. 36. Section 90(1) of the WHS Act confers power on an HSR if the HSR reasonably believes a person: (i) is contravening a provision of the WHS Act; or (ii) has contravened a provision of the WHS Act which make it more likely that the contravention will continue to be repeated. 37. The notion of a 'reasonable belief requires an HSR to actually hold the belief asserted and for there to be facts and circumstances known to the HSR which constitute objectively reasonable grounds for the belief. 38. In regard to the facts and circumstances being sufficient to ground a reasonable belief, Kiefel CJ and Bell J detailed in Prior v Mole (2017) 261 CLR 265 that proof of reasonableness: ... requires that those facts and circumstances be sufficient to induce in the mind of a reasonable person a positive inclination towards acceptance of the subject matter of the belief. This is not to say that it requires proof on the civil standard of the existence of that matter. Facts and circumstances that suffice to establish the reasonable grounds for a belief may include some degree of conjecture ... 39. The state of mind 'belief' was described by Gageler J in Prior v Mole as follows: Belief is not certainty. "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" ... 40. In other words, so long as an HSR had an inclination of mind towards assenting to, rather than rejecting, the propositions that either: (i) a person was contravening a provision of the WHS Act; or (ii) had contravened a provision of the WHS Act in circumstances making it likely the contravention would continue or be repeated, and there were facts and circumstances sufficient to induce such a belief in the mind of a reasonable person, the power would be validly exercised. 41. As can be seen, the beliefs referred to in paragraph 36 have different temporal focuses. The first fixes on the present, viz., that there is presently a contravention of the WHS Act occurring. The second centres on the past, viz., that a contravention of the WHS Act has been committed and that that contravention occurred in circumstances which make it likely the contravention will either continue or be repeated in the future. 42. It can immediately be seen that whether or not a PCBU had been found to have not been in contravention of the WHS Act in 2020 in relation to a particular work health and safety matter is not and cannot be determinative of whether an HSR has reasonable grounds to believe that a PCBU is contravening the WHS Act in 2021 in relation to the same or a related matter. It may be a relevant matter in assessing whether an HSR could reasonably have such a belief but it cannot, on any analysis, be dispositive of that question. 43. An inspector is conferred with a power of review under ss 101-102 of the WHS Act. Section 101(2) imposes an obligation on an Inspector to review the PIN and inquire into the circumstances the subject of the PIN. The notion of a 'review' conveys a reconsideration and re-examination by the inspector of the PIN and, in particular, the circumstances the subject of the PIN. Section 102(1) imposes a duty on an inspector to either confirm the PIN, confirm the PIN with changes or cancel the PIN. In undertaking the function of reviewing and inquiring into the circumstances the subject of the PIN, the Inspector determines, based upon his or her review, whether the PIN was validly issued by the HSR, viz., whether the HSR had reasonable grounds for believing that one or both of the states of affairs set out under s 90(1) of the WHS Act existed. 44. The role of an internal reviewer under Division 2 of Part 12 to the WHS Act (and the Commission under Division 3 of Part 12) is to step into the shoes of the decision-maker and make the correct and preferable decision on the materials before the reviewer at the time the reviewer comes to make their decision. 45. In Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, for example, Bowen CJ and Deane J explained: ... The question for the determination of the Tribunal is whether the decision was the correct or preferable one on the material before the Tribunal. The Act offers little general guidance on the criteria and rules which the Tribunal is to apply in the performance of its task of reviewing administrative decisions which are subjected to its surveillance. Even in a case such as the present where the legislation under which the relevant decision was made fails to specify the particular criteria or considerations which are relevant to the decision, the Tribunal is not, however, at large. In its proceedings, it is obliged to act judicially, that is to say, with judicial fairness and detachment. In its review of an administrative decision, it is subject to the general constraints to which the administrative officer whose decision is under review was subject, namely, that the relevant power must not be exercised for a purpose other than that for which it exists... that regard must be had to the relevant considerations, and that matters "absolutely apart from the matters which by law ought to be taken into consideration" must be ignored ... (emphasis added) 46. Kiefel J (as the Chief Justice then was) said in Shi v Migration Agents Registration Authority (2008) 235 CLR 286 in the context of a merits review by the Administrative Appeal Tribunal, which analysis is applicable to merits review generally: ... The object of the review undertaken by the Tribunal has been said to be to determine what is the "correct or preferable decision". "Preferable" is apt to refer to a decision which involves discretionary considerations. A "correct" decision, in the context of review, might be taken to be one rightly made, in the proper sense. It is, inevitably, a decision by the original decision-maker with which the Tribunal agrees. Smithers J, in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd, said that it is for the Tribunal to determine whether the decision is acceptable, when tested against the requirements of good government. This is because the Tribunal, in essence, is an instrument of government administration. The reasons of the members of the Full Court of the Federal Court in Drake v Minister for Immigration and Ethnic Affairs confirm what is apparent from s 43(1), that the Tribunal reaches its conclusion, as to what is the correct decision, by conducting its own, independent, assessment and determination of the matters necessary to be addressed ... 47. The function of the internal reviewer and the Commission on external review is, therefore, to 'do over again' that which was done by the inspector. 48. The internal reviewer, and the Commission on external review, make afresh a decision under s 102 of the WHS Act. That is, the question on the internal and external review is whether Inspector Issa's decision to cancel the PIN on the basis that Mr Tudor's belief that the Intervener was not complying with its duties under ss 19-20 of the WHS Act, was not objectively reasonable, and what the correct and preferable decision is in the circumstances. A further question arises as to what relief the Commission, if it determines the PIN was validly issued, should grant. The Fair Work Commission's decision is not and cannot be dispositive of tile question on the external review 49. The Intervener's submissions are fundamentally flawed, as they assume that the question adjudicated by Bull DP on the basis of evidence as to the state of affairs which existed at Liverpool Railway Station up to 10 March 2020 (or, at the latest, 9 April 2020) was the same as, or necessarily dispositive of, the question of whether Mr Tudor had a reasonable belief as at 16 May 2021 (some 432 and 402 days respectively after Bull DP reserved his decision and then issued his decision) enabling him to exercise the power under s 90 of the WHS Act to issue the PIN and, if he did, what orders the Commission should make on an external review. 50. These proceedings, plainly, do not involve the re-litigation of the same issues as were before the Fair Work Commission, as erroneously asserted at AS [52]. The issue in the Fair Work Commission proceedings was whether, consistently with the applicable enterprise agreement, the Intervener could demolish the GAC. A subset of those issues was whether the removal of the GAC was consistent with the Intervener's health and safety obligations. 51. The issue in these proceedings is whether the Commission, in reviewing the decision of Inspector Issa, can conclude that as at 16 May 2021 Mr Tudor had a reasonable belief that the Intervener was breaching ss 19-20 of the WHS Act by determining to proceed to demolish the GAC in the circumstances which then pertained, including the pendency of the global Covid-19 pandemic and the Intervener's undertaking that it would not demolish the GAC until the pandemic was over. These matters and factual circumstances were, plainly, not in issue before the Fair Work Commission. 52. It is also self-evident that these proceedings deal with a different temporal context, viz., the circumstances which existed as at 16 May 2021 and, it is contended consistent with the conventional position which applies in administrative merits reviews, if the Commission determines to grant relief, the circumstances as they exist today. The Fair Work Commission proceedings did not concern the situation at Liverpool Railway Station at either of these times. 53. Moreover, Mr Tudor's purpose and the direction issued under s 90(2) of the WHS Act pursuant to his PIN was not that the Intervener never remove the GAC. Rather, it was to cease its removal of the GAC at that time. Mr Tudor was not purporting to forever and a day curtail the ability of the Intervener to remove the GAC. Rather, in order to address the reasonably believed extant contravention, he sought that the demolition works which were then occurring, or being planned, stop for a period. It is significant in this connection that the matters specified for the directions issued under s 93 were as follows: ... Cease removal of the Garrison at Liverpool Railway Station. 54. The cessation was limited temporally to the period from 16 to 25 May 2021. 55. The fact Mr Tudor was a witness for the RTBU in the Fair Work proceedings is entirely irrelevant. It is also entirely beside the point that he sought the assistance of representatives of the RTBU in drafting the PIN (as he was entitled under s 341(1)(c)(ii) of the FW Act). 56. The claims and issued raised in these proceedings are patently distinct and different from those addressed in the Fair Work Commission proceedings. It is telling in this regard that the Intervener has not even sought to rely on any species of estoppel and has been forced back to contending that the proceedings are an abuse of process on the (spurious) basis that the issues in them were already determined by the Fair Work Commission. The asserted abuse of process is without merit and must be rejected. The asserted issue of utility 57. AS [55]-[62] assume that the Commission is circumscribed in the relief it can grant to that set out originally by Mr Tudor in the PIN. 58. As detailed above, the Commission makes orders and resolves these proceedings by reference to the circumstances which currently exist. That is, it assesses what steps (presuming it concludes the power to issue the PIN was validly exercised), ought now be taken by the Intervener to either remedy the contravention, prevent a likely contravention from occurring in the future or remedy the things causing such likely contravention: s 90(2). 59. In any event, presuming that the Intervener is correct in contending that Mr Tudor is limited to obtaining relief in respect to what was set out in the PIN as originally framed, there is utility in confirming the PIN as the setting aside of the internal review decision and Inspector Issa's decision will entail that there was failure to comply with the PIN by the Intervener and thus a breach of s 90 of the WHS Act resulting in an offence contrary to s 99 of the WHS Act. There is no unfairness to the Intervener if this occurs, as it knowingly (and haughtily) hedged its bets by ignoring the PIN and proceeded to arrange for the GAC to be removed. It will be deserving of sanction for any breach of s 99. Moreover, in any proceedings which lead to conviction for a breach of s 99, restoration orders under s 237 can be obtained to remedy matters caused by the commission of the offence, including re-making the GAC. 60. The question of what relief the Commission can grant in conducting an external review of a decision concerning a PIN and whether that relief is limited temporally to the PIN as issued or can relate to present circumstances is not one which has been considered before. This is a significant matter, of itself, militating against summary dismissal. Mr Tudor's principal position is that the Commission, if it concludes that the PIN was validly issued, is able to focus and address the reality of the present situation at Liverpool Railway Station as detailed by the evidence adduced in determining what relief is appropriate to be granted. The Commission can confirm and vary the PIN requiring the Intervener to take steps to re-construct the GAC or otherwise take steps to address the health and safety issues raised by the inappropriate removal of the GAC contrary to the PIN in the middle of the pandemic. Conclusion on r 13.4(1) 61. Having regard to the above matters, it cannot sensibly be suggested that the proceedings are frivolous (in the sense that they are entirely lacking in substance or disclose no cause of action) or vexatious. Mr Tudor has brought the proceedings so that the issues raised in them can be adjudicated by the Commission. Real questions of fact and law fall to be determined in them and the proceedings cannot be said to disclose no reasonable cause of action. The proceedings are not an abuse of process. 62. None of the preconditions to the exercise of the power under r 13.4(1) of the UCPR are enlivened and the Motion should be dismissed. The Commission should set a further date for a hearing so that the matter can be determined on the merits. Costs 63. The Intervener's motion is entirely unnecessary and misconceived for the reasons set out above. It is also counter-intuitive, as it has caused the loss of the hearing date and unnecessary protraction. of these proceedings. 64. The motion was filed without reasonable cause for the purposes of s 181(2)(b) of the Industrial Relations Act 1996 (NSW) and with the apparent purpose of vexing and intimidating. Mr Tudor 65. It is appropriate that the Commission exercise its discretion to order that the Intervener pay Mr Tudor's costs of the motion and, if sought, the costs of SafeWork.

Sydney Trains in reply

1. Sydney Trains relied upon the following written submissions in reply filed in the Commission on 29 October 2021 (footnotes omitted): A. Introduction 1. These Submissions in Reply respond to the Applicant's Submissions on the Intervenor's Motion dated 20 October 2021 (ASIM). B. The Notice of Motion is properly brought 2. The Applicant submitted (at ASIM [2]) that Sydney Trains' "filing of the Motion and threatening of costs is conduct unbecoming [of] a statutory corporation and NSW Government Agency.'' That submission ought be rejected. 3. To the contrary, the Motion is properly brought, as expressly contemplated at the directions hearing before Commissioner Murphy on 16 July 2021, in a genuine and legitimate attempt to avoid and recoup the unnecessary expenditure of public monies entrusted in Sydney Trains. C. The Fair Work Commission Proceedings 4. The Applicant submits that on 9 April 2020, Deputy President Bull of the Fair Work Commission (FWC) determined the dispute involving the Gate Array Control (GAC) at Liverpool Station "on the basis that the proposed removal of the GAC was not contrary to clause 35 of an enterprise agreement which covered and applied to the Intervener, its employees and the RTBU'' (at ASIM [4]). 5. While that submission is correct, it omits a very important detail; clause 35 of the relevant enterprise agreement was titled "Workplace Health, Safety and Environment" and required Sydney Trains to "ensure the health, safety and welfare at work of all its Employees" consistent with its obligations under section 19 of the Work Health and Safety Act 2011 (NSW) (WHS Act). That was and is the very issue to be determined in these proceedings which arise out of an application under section 229 of the WHS Act. 6. The Applicant submits (at ASIM [50]) that "The issue in the Fair Work Commission proceedings was whether, consistently with the applicable enterprise agreement, the Intervener could demolish the GAC. A subset of those issues was whether the removal of the GAC was consistent with the Intervener's health and safety obligations." 7. Compliance with the WHS Act was hardly a "subset" of the issues in dispute. It was the primary issue determined. Bull DP not only found that the proposed removal of the GAC was not contrary to clause 35 of the relevant enterprise agreement, but his finding that "Sydney Trains has complied with its safety obligations" in relation to the proposal removal of the GAC was central to that determination. It was a critical finding along the way to the ultimate conclusion as to compliance with the enterprise agreement. 8. The Applicant appears to suggest (at ASIM [22]) that the issues for determination in these proceedings are different to the issues determined in the FWC Proceedings. That ought be rejected. There also cannot be any suggestion that these proceedings can be distinguished from the FWC Proceedings because of the emergence or existence of COVID-19. 9. Indeed, the Applicant's Submissions filed 22 September 2021 in relation to the substantive dispute, while referencing COVID-19, focus on the Applicant's claim that the GAC was necessary to manage the risk of occupational violence (see paragraphs [31]-[35] of those submissions). That issue was conclusively determined in Sydney Trains' favour in the FWC Proceedings at paragraphs [77]-[83]. 10. As explained in paragraph 39 to 41 of the Sydney Trains Outline of Submissions dated 28 September 2021 (ISIM), the issues that the Applicant seeks to be ventilated in the substantive proceedings have previously been ventilated and determined... 11. The Applicant submitted (at ASIM [51]) that "The issue in these proceedings is whether the Commission, in reviewing the decision of Inspector Issa, can conclude that as at 16 May 2021 Mr Tudor had a reasonable belief that the Intervener was breaching ss 19-20 of the WHS Act by determining to proceed to demolish the GAC in the circumstances which then pertained, including the pendency of the global Covid-19 pandemic and the Intervener's undertaking that it would not demolish the GAC until the pandemic was over. These matters and factual circumstances were, plainly, not in issue before the Fair Work Commission." However, as explained in paragraph 25 to 33 below, that is not the role of the Industrial Relations Commission (IRC). Whether or not "Mr Tudor had a reasonable belief that the Intervener was breaching ss 19-20 of the WHS Act" is not a question that needs to be answered by the IRC in undertaking its proper task of determining the correct and preferable decision based on the material now before it. 12. The Applicant also submitted (at ASIM [53]) that "Mr Tudor's purpose and the direction issued under s 90(2) of the WHS Act pursuant to his PIN was not that the Intervener never remove the GAC. Rather, it was to cease its removal of the GAC at that time." However, that submission is inconsistent with terms of the PIN. 13. The PIN directed that "Sydney Trains must take all necessary steps to cancel the removal of the Garrison at Liverpool Railway Station". That direction was said to be required to be complied with by 25 May 2021. There was nothing in the PIN which suggested that the direction to "cancel the removal" was anything but indefinite (as with the relief sought in the FWC Proceedings). There was, for example, no direction in the PIN to "suspend", "delay" or "stay" the removal of the GAC; only a direction to "cease" removal. 14. The Applicant's submission (at ASIM [54]) that the "cessation was limited temporally to the period from 16 to 25 May 2021" similarly has no basis in fact. It appears to arise from the fact that the PIN had a "Date compliance with PIN required" of "25/05/2021". That date was included because a compliance date was required to be included in the PIN due to the operation of section 92(2) of the WHS Act. The inclusion of that date did not change the fact that the PIN, as written, required the removal of the GAC to "cease". 15. The Applicant's argument, if accepted, would mean that a PCBU on receipt of a PIN would be required to comply with it only at the single point in time identified as the "Date compliance with PIN required', but the PCBU would not be required to comply with the PIN either before or after that point in time. That would be an absurd outcome. 16. The PIN and the FWC Proceedings sought the same substantive relief; that the GAC not be removed at all. D. Consultation 17. The Applicant submits that Sydney Train "was required to consult with workers at Liverpool Railway Station pursuant to ss 47 and 49 of the WHS Act about the removal of the GAC during the Covid-19 pandemic given that it was a matter that related to work health and safety and directly affected those workers", that "The nature of the consultation required was that detailed by s 48 to the WHS Act" and "Sydney Trains "failed to consult and instead commenced arranging for the demolition of the GAC" (at ASIM [9]). That submission overlooks more than three years of consultation that was undertaken in relation to the removal of the GAC and misapprehends the scope of the duty to consult in section 47 of the WHS Act. 18. Firstly, consultation in relation to the proposed removal of the GAC commenced by at least 17 November 2017. That is, consultation on the relevant "matter relating to work health and safety", arising from the proposed removal of the GAC, commenced more than three years prior to the issue of the PIN. For the Applicant to suggest that Sydney Trains ''failed to consult" (at ASIM [9]) has no basis in reality. 19. Secondly, to the extent that Sydney Trains had an obligation under section 47 of the WHS Act to consult, it was only to consult "so far as is reasonably practicable." The obligation was not to take all possible steps to consult. 20. The legislative intention behind section 47 of the WHS Act has been described as to "enable workers who may be affected by workplace, health and safety issues to have input into the management of those issues before an employer imposes conditions upon them." 21. There can be no doubt that workers, including the Applicant, had an opportunity to provide input into the work, health and safety issues arising from Sydney Trains' decision to remove the GAC, that being a decision: (a) that was made on or about 18 December 2017; (b) that was subject to an industrial dispute in which the views of the Applicant and others were expressed and considered; (c) that was authorised by the decision of Bull DP in the FWC Proceedings; (d) that was authorised by the decision of the Full Bench of the Fair Work Commission in the Appeal Proceedings. 22. At the time that the PIN was issued in May 2021, there was no new "matter relating to work health and safety" arising from the implementation of the decision to remove the GAC that required Sydney Trains to engage in consultation (beyond the consultation already engaged in since November 2017). 23. Further, even if the impact of COVID-19 on the removal of the GAC was to be regarded as giving rise to a new "matter relating to work health and safety", it was not reasonably practicable for Sydney Trains to engage in further consultation given the history of the dispute which had been determined in favour of the GAC being removed. 24. If it were otherwise, every industrial dispute determined by an industrial arbitrator under a dispute settlement provision of an industrial instrument could be re-enlivened by a party asserting that a new work health and safety issue triggered the recommencement of consultation. That would be an absurd outcome that meant that industrial disputes would not have effective finality and would be inconsistent with the objects of the WHS Act which seeks to provide for "fair and effective ... consultation, cooperation and issue resolution in relation to work health and safety". E. The role of the Industrial Relations Commission 25. The Applicant described the role of the IRC in the substantive proceedings (at ASIM [44]) as "to step into the shoes of the decision-maker and make the correct and preferable decision on the materials before the reviewer at the time the reviewer comes to make their decision." Sydney Trains agrees with that description of the IRC's role. However, in applying that role to these proceedings it is important to identify the decision being reviewed and the fact that the decision is to be based on the materials currently before the reviewer and not those that were before the Applicant when he issued the PIN. 26. The substantive proceedings. which are subject to Sydney Trains' Notice of Motion, were commenced by way of an application for external review under section 229 of the WHS Act (Application). 27. The jurisdiction of the IRC in this matter is to review "a reviewable decision made by the regulator". The IRC may "confirm, vary or revoke the decision concerned." 28. The relevant "reviewable decision made by the regulator" that is the subject of external review is the internal review decision made by SafeWork NSW on 21 June 2021 under section 227 of the WHS Act. 29. The IRC's role is to undertake a merits review and not a judicial review. As a result, the IRC's role is not to determine whether or not SafeWork NSW's internal review decision was erroneous, nor to determine whether or not Inspector Issa's decision on 24 May 2021 was erroneous. Nor is the IRC's role to determine whether the Applicant had a reasonable belief to issue the PIN based on the information before him at that time. 30. The IRC's role is to stand in the shoes of SafeWork NSW and determine the correct and preferable decision with respect to the PIN having regard to the evidence now before the IRC including the evidence that was not before SafeWork NSW on internal review, Inspector Issa on review of the PIN and/or the Applicant at the time of issuing the PIN). 31. What is particularly important to note is that the IRC's role is to determine the correct and preferable decision having regard to the fact that, on the material before it, the GAC has been demolished and does not exist. 32. As a corollary, the IRC's role is not, and cannot be, to determine whether Sydney Trains should cease removing the GAC or whether Sydney Trains should remove the GAC. The factual circumstances simply do not and cannot give rise to such questions. 33. As a result, the relief sought by the Applicant in the Application (to, among other things, "Affirm the Provisional Improvement Notice issued by the Applicant on 16 May 2021") is unavailable. The correct and preferable decision is to uphold the internal review decision to, in effect, cancel the PIN. F. Utility 34. The Applicant submits (at ASIM [59]) that there is "utility in confirming the PIN as the setting aside of the internal review decision and Inspector Issa 's decision will entail that there was failure to comply with the PIN by the Intervener and thus a breach of s 90 of the WHS Act resulting in an offence contrary to s 99 of the WHS Act." That submission misunderstands the operation and effect of sections 90, 99 and 101 of the WHS Act. 35. Section 90 of the WHS Act sets out the circumstances in which a health and safety representative (HSR) may issue a provisional improvement notice. Every subsection of section 90 is directed at HSRs and the scope of their powers to issue provisional improvement notice. 36. The Applicant submits (at ASIM [59]) that "there is utility in confirming the PIN as the setting aside of the internal review decision and Inspector Issa's decision will entail that there was failure to comply with the PIN by the Intervener and thus a breach of s 90 of the WHS Act". 37. However, nothing in section 90 imposes any obligations on Sydney Trains or any other PCBU to do anything. Any failure by Sydney Trains to comply with the PIN would not give rise to a breach of section 90 of the WHS Act. 38. Turning next to sections 99 and 101 of the WHS Act. 39. Section 99 provides as follows: 99 Offence to contravene a provisional improvement notice (1) This section applies if a provisional improvement notice has been issued to a person and an inspector has not been required under section 101 to attend at the workplace. (2) The person must comply with the provisional improvement notice within the time specified in the notice. Maximum penalty- (a) in the case of an individual-575 penalty units, or (b) in the case of a body corporate-2,885 penalty units. 40. Section 101 of the WHS provides as follows: 101 Regulator to appoint inspector to review notice (1) The regulator must ensure that an inspector attends the workplace as soon as practicable after a request is made under section 100. (2) The inspector must review the provisional improvement notice and inquire into the circumstances that are the subject of the provisional improvement notice. (3) An inspector may review a provisional improvement notice even if the period for compliance with the notice has expired. 41. Section 99(2) of the WHS Act creates a criminal offence. However, it only applies in the limited circumstances provided for in section 99(1) of the WHS Act. That is, if: (a) a provisional improvement notice has been issued to a person; and (b) an inspector has not been required under section 101 to attend at the workplace. 42. Section 99 of the WHS Act is not concerned with the merits of a PIN or the outcome of a request for an inspector to attend to review a PIN. 43. Regardless of the outcome of the merits of any PIN or the outcome of any review of a PIN (including on internal or external review), section 99 of the WHS Act does not create an offence unless, among other things, "an inspector has not been required under section 101 to attend at the workplace". 44. An inspector was, at the request of Sydney Trains, required to attend under section 101 in response to the PIN issued by the Applicant on 16 May 2021. Accordingly, the pre-requisite for an offence under section 99 of the WHS Act has not been satisfied and cannot be satisfied regardless of the outcome of these proceedings. 45. Accordingly. while the Applicant submits (at ASIM [59]) that "in any proceedings which lead to conviction for a breach of s 99, restoration orders under s 237 can be obtained to remedy matters caused by the commission of the offence, including re­making the GAC", given that Sydney Trains did not commit, and cannot have committed, an offence against section 99 of the WHS Act in relation to the PIN, any reference to section 237 of the WHS Act is irrelevant. 46. For the reasons set out in paragraphs [55]-[62] of the ISIM, there is no utility in the proceedings. G. Other issues in the Applicant's submissions 47. The Applicant submits (at ASIM [56]) that "It is telling in this regard that the Intervener has not even sought to rely on any species of estoppel and has been forced back to contending that the proceedings are an abuse of process on the (spurious) basis that the issues in them were already determined by the Fair Work Commission." 48. The reason that Sydney Trains relies on the fact that the proceedings are an abuse of process, and not any species of estoppel, is because Sydney Trains acknowledges that issue estoppel may not be available in these proceedings as the Applicant, Mr Tudor, was not a party to the FWC Proceedings (but was a witness and a member of the Applicant in those proceedings). While that issue may be a barrier to an issue estoppel, it is not a barrier to these proceedings being an abuse of process for the reasons articulated in paragraphs 47 to 52 of the lSlM. H. Conclusion 49. The Application is frivolous and vexatious and has no reasonable prospects of success. The Application should be struck out and the Applicant ordered to pay Sydney Trains' costs. 50. The relief sought in Sydney Trains' Notice of Motion should be granted.
2. Annexed to Sydney Trains' written submissions in reply was a document which set out the substantial overlap between these proceedings and previous proceedings in the Fair Work Commission.

The proceedings

1. At the hearing of Sydney Trains' motion on 12 November 2021, counsel for Sydney Trains, Ms Bulut, spoke to the written submissions filed on behalf of Sydney Trains and made supplementary oral submissions stressing the point that affirmation by the Commission of the PIN issued by Mr Tudor could have no utility "because one cannot cease the removal of something that's already been removed".
2. Counsel for SafeWork, Mr Magee, began to make a submission on the question of utility that was raised in the written submissions on Sydney Trains' motion relied on by Mr Tudor concerning s 99 of the WHS Act (paragraph 59 at [26]). At that point, counsel for Mr Tudor, Mr Boncardo, rose to his feet and the following exchanges occurred: BONCARDO: Commissioner, I apologise for interrupting my friend. Can I just say this about this point? I accept what Ms Bulut says in her reply submissions about s 90 and s 99. I'm going to make a different point in respect of s 102(3) of the Work Health Safety Act in my submissions. I'm in Mr Magee's hands, but it might be more convenient for him to address the point of the statutory construction after I've made those points, but I don't press the argument, given the terms of s 90(2) of the WHS Act, that there would have been an offence under s 99. COMMISSIONER: And what was the section that you are going to-- BONCARDO: I'm going to take the Commission to s 102(3) of the Work Health and Safety Act. So, I apologise for interrupting Mr Magee but it may be more convenient, given the concession we're making about s 99, for the regulator to address that point after my submissions. MAGEE: I'm happy to do that, given that concession. I was essentially going to support the intervener's point on that section, but now that it's not being pressed, I don't need to address that.
3. Sections 102 and 193 of the WHS Act are in the following terms: 102 Decision of inspector on review of provisional improvement notice (1) After reviewing the provisional improvement notice, the inspector must - (a) confirm the provisional improvement notice, or (b) confirm the provisional improvement notice with changes, or (c) cancel the provisional improvement notice. (2) The inspector must give a copy of his or her decision to - (a) the applicant for the review of the provisional improvement notice, and (b) the health and safety representative who issued the notice. (3) A provisional improvement notice that is confirmed (with or without changes) by an inspector is taken to be an improvement notice issued by the inspector under this Act. 193 Compliance with improvement notice The person to whom an improvement notice is issued must comply with the notice within the period specified in the notice. Maximum penalty - (a) in the case of an individual - 575 penalty units, or (b) in the case of a body corporate - 2,885 penalty units.
4. After responding to the submissions of Sydney Trains, Mr Boncardo then put the following submission: BONCARDO: Notwithstanding that a PIN has been issued and notwithstanding that the inspector hasn't completed his investigations, the intervener on the following day commences decommissioning the GAC and commences demolishing it. That is on 19 May. Now, in respect to the demolition of the garrison, we say a number of things about that. Firstly, the intervener took a significant risk and took that risk with its eyes open, that Inspector Issa may determine that the PIN ought be confirmed and, in those circumstances, under s 102 of the Work Health Safety Act, his decision would have operated as an improvement notice. And if I can take the Commission in that regard to s 102. … BONCARDO: Yes, the Commission will see that, amongst other things, under subs (1), Inspector Issa would have confirmed the PIN, confirmed there be changes or cancelled it. He, in fact, cancelled it. And then under subs (3), in the event that he had confirmed it, with or without changes, the PIN was taken to be an improvement notice issued by an inspector. And the Commission will note, under s 103 (sic 193) of the Work Health and Safety Act, that in the event that an improvement notice is issued, the person to who it is directed to must comply with it within the time specified in the notice. So, Sydney Trains were, we say, running the gauntlet and they were running the gauntlet in circumstances where, as a sophisticated organisation with access to, we say, significant legal resources and expertise and, indeed, a frequent litigant in this Commission, they ought to have been aware that there was a process of review, both internal and external, which was available to Mr Tudor and which could have resulted and, in these proceedings, which Mr Tudor seeks to result in, the PIN being confirmed. … BONCARDO: But the purposes of these proceedings is to have you adjudicate the reasonableness or otherwise of the belief formed by Mr Tudor and my client's primary position is that the Commission ought to confirm the PIN which will mean, in effect, that the intervener, in running the gauntlet as it did, may well have breached s 193 of the Act, because your power of review is in respect to Inspector Issa's decision and if you confirm the PIN or confirm it with changes and the respondent has - the intervener, I should say, has run the gauntlet, as we've discussed, then they will be in breach of s 193 of the Act. And the consequence of that, and this is a response to Ms Bulut's lack of utility argument is this and that is that a breach of s 193 of the Act is a penal provision, it's a criminal offence and it can be prosecuted pursuant to s 230 by the regulator or an inspector with written authorisation of the regulator, or - and this is perhaps somewhat controversial - the Secretary of a union, any members of which are concerned in the matter to which the proceedings relate, but only as permitted by subs (3) of the offences, a category 1 or category 2 offence, leaving to one side the Secretary of the union issue, it is open or will be open, we say, to the regulator to commence proceedings prosecuting the intervener if the Commission confirms the PIN. And in those proceedings, the regulator could seek an order for restoration under s 237, which is to require the offender to take such steps to remedy any matter caused by the commission of the offence. That could be to rebuild the garrison. So, in terms of the issue of utility, we say that that is squarely dealt with by reason of the fact that if the Commission determines to confirm the PIN, there will have been a breach of s 193 by the intervener, which will enliven the capacity without question of the regulator, Mr Magee's client, to bring proceedings and, amongst other things, seek orders for restoration, which is really what Mr Tudor is interested in here. He's interested in having and the interested in having the garrison which was, we say, improperly removed, reinstalled.
5. Counsel then put, as an alternative submission, that the Commission "in exercise of its power under s 229(4), can vary a decision and I accept that, as currently framed, the application seeks confirmation, but we are not bound by the relief, as it's currently framed and an alternate submission at final hearing will be made that it is open to the Commission and the Commission should, in fact, if it determines not to confirm the PIN, vary it to require the reinstatement of the garrison".
6. In reply, Ms Bulut put a submission to the effect that Sydney Trains could not be made retrospectively criminally liable for removing the GAC Booth on 20 May 2021 in the event that the Commission revoked the decision of Mr Issa to cancel the PIN and the decision of Mr Allison on internal review.
7. Mr Tudor and Sydney Trains were given leave to file short written notes on the question of the potential criminal liability of Sydney Trains.
8. On 19 November 2021, the following note was filed on behalf of Mr Tudor (footnotes omitted): 1. This short note is filed in response to the contentions raised by the Intervener in its oral reply submissions on the question of whether, if the Commission makes an order confirming Mr Tudor's PIN with effect from 17-25 May 2021, the Intervener could be guilty of an offence contrary to s 193 of the Work Health and Safety Act 2011 (NSW) (WHS Act). 2. The argument is advanced by Mr Tudor in opposition to the Intervener's strike out application. It is not advanced because his purpose is to seek to have the Intervener prosecuted. Rather, it is to counter the contention made by the Intervener that there is no utility in the proceedings, given that it has already demolished the Garrison. Background 3. Section 90 permits a health and safety representative (HSR) to issue a PIN where an HSR reasonably believes a person is contravening the WHS Act or has contravened the WHS Act in circumstances that make it likely the contravention will continue or be repeated. A PIN is directed to remedying the contravention, preventing a likely contravention from occurring or remedying the things or operations causing the contravention or likely contravention. 4. Section 99 makes it an offence to contravene a PIN unless an inspector has been required to attend at the workplace under s 101. Inspector Issa was required to attend at the workplace on 17 May 2021. The demolition of the Garrison by the Intervener on 19 May could not, therefore, constitute an offence contrary to s 99 of the WHS Act. 5. Inspector Issa's decision under s 102 was the decision reviewed by Mr Tudor pursuant to Item 4 of s 223(1) of the WHS Act. In the event the Commission, in reviewing the internal review of Mr Issa's decision, confirms the PIN, the PIN will have been confirmed for the purposes of s 102(3) of the WHS Act and will be taken to be an improvement notice issued by an inspector. A failure to comply with an improvement notice is an offence contrary to s 193 of the WHS Act. The Intervener's contention 6. Mr Tudor understands the Intervener's contention to be that because Mr Tudor's PIN was stayed by operation of s 100(2) of the WHS Act once a request for review of the PIN was made by the Intervener, it did not and could not have breached s 99 and could not have breached s 193 of the WHS Act because at the time it demolished the Garrison, no PIN or decision of an inspector confirming the PIN under s 102 operated to preclude it from doing so. 7. Its contention appears to be that an order of the Commission under s 229(4) of the WHS Act on external review confining the PIN cannot cause it to be retrospectively liable for an offence contrary to s 193. Analysis 8. It is a common law principle of construction that, in the absence of express words or necessary intendment, a statute does not retrospectively change rights and obligations including by retrospectively extending the criminal law. This principle has been described as creating a 'presumption' that may be rebutted by express words or necessary implication. The strength of the presumption is influenced by the degree of injustice which will result if legislation is construed as having a retrospective operation. 9. Ultimately, the question is one of statutory construction and regard must be had to the text, context and purpose of the provision or provisions in question. A construction which is consistent with the purpose of a provision is required by s 33 of the lnterpretation Act 1987 (NSW). 10. There is nothing in the text of the WHS Act which would point against a person the subject of a PIN being potentially criminally liable for breaching a PIN which, by operation of a decision made on an internal review under s 226(2) or external review under s 229(4) of the WHS Act, was confirmed after being reviewed by an inspector. Nothing in the text or context of ss 90, 102, 226 and 229 indicates that such a result is not contemplated by the statutory scheme. To the contrary, the provisions expressly provide for such an outcome. Hence, s 102(3) provides that if a PIN is confirmed it operates as an improvement notice. A decision confirming, changing or cancelling a PIN under s 102(1) can be confirmed, varied or revoked under ss 226(2) or 229(4). In other words, a PIN can be reinstated and reinstated with retrospective effect. 11. A PIN is an important instrument available to an HSR to ensure the health and safety of workers by guarding against and remedying contraventions of the WHS Act. It would be an anomalous and absurd result if a PCBU could circumvent a PIN (and suffer no consequences) where a PIN was stayed by operation of s 100 of the WHS Act because a PCBU sought review of the PIN, but the PIN was ultimately: (i) found by an inspector on review under s 102; (ii) found by an internal reviewer on review under ss 226(4); or (iii) found by the Commission on external review under 229(4), to have been validly issued and validly issued in circumstances where it ought be confirmed. 12. A construction of ss 90, 102, 226 and 229 that determined that a PIN could not have retroactive operation and thus could not be breached by a PCBU is inherently unlikely to have been intended by the legislature and incongruent with the purpose of a PIN. 13. Moreover, it is inconsistent with the main objects of the WHS Act enunciated by: s 3(1)(a) of the WHS Act, to protect workers and other persons against harm via the elimination and minimisation of risks arising from work; s 3(1)(e) of the WHS Act to secure compliance via effective and appropriate enforcement mechanisms; and s 3(1)(g) of the WHS Act to provide for a framework of continuous improvement and progressively higher standards of work health and safety. The current case is an illustrative example of a circumstance where, if a PIN could not have retroactive operation, a PCBU could compromise the health and safety of workers with impunity and blithely ignore the requirements of a PIN. If the Commission determines that Mr Tudor had, in fact, validly issued the PIN and it ought never have been set aside by Inspector Issa, then the Intervener (on its argument) will have succeeded in destroying the subject matter of the PIN without any consequence and in circumstances where no remedial action could be taken. This would be an incongruous outcome and cannot be the intention of the legislative scheme. 14. In assessing whether a reviewed PIN could have retroactive operation, the degree of injustice or fairness to a PCBU is a relevant consideration. There can be no injustice or unfairness to a PCBU who determines to thumb its nose at the prospect of a successful review of a PIN by an HSR under the procedures provided for such reviews by the WHS Act and engages in conduct in defiance of the PIN. The WHS Act prescribes review procedures which parties can avail themselves of but do so in circumstances where they ought be aware that reviews could result in alterations to decisions made to, for instance, cancel a PIN. There can, in the circumstances, be no injustice to a PCBU in a construction of the WHS Act which permits a PIN to have retroactive operation such that a PCBU may, if it determines to run the gauntlet after seeking a review of a PIN, be found to have committed an offence under s 193 of the WHS Act. 15. The Commission, of course, does not need to reach a concluded view on this novel (but potentially significant) question of statutory construction for the purposes of assessing the present application. Rather, it need only form a view as to whether the above construction is reasonably arguable for the purposes of considering the Intervener's contention that there can be no utility in the proceedings. 16. It is submitted that the above construction is plainly arguable and that there is, therefore, the potential that if the Commission determines, in effect, to confirm the PIN that the Intervener will have committed an offence contrary to s 193 of the WHS Act. It may then be prosecuted by one of the persons detailed in s 230 and if convicted could be ordered under s 237 to rebuild the garrison.
9. On 29 November 2021, the following note was filed on behalf of Sydney Trains: A. Introduction 1. On 12 November 2021, at the hearing of Sydney Trains' Notice of Motion, Commissioner Murphy invited Mr Tudor to provide a short note in response to contentions raised by Sydney Trains in relation to its potential criminal liability. 2. Mr Tudor subsequently filed a note dated 19 November 2021 (AN) and, by this note, Sydney Trains replies to the AN. B. Background 3. Sydney Trains agrees with the Applicant's Background to this issue (at AN [3]-[5]) and the Applicant's description of Sydney Trains contention (at AN [6)-[7]) which is, in summary, that: (a) Mr Tudor's PIN was stayed by operation of s 100(2) of the Work Health and Safety Act 201 I (NSW) (WHS Act);l (b) as a result, Sydney Trains could not have contravened s99(2) of the WHS Act when, after requesting SafeWork NSW to appoint an inspector to review the PIN, it did not comply with the (stayed) PIN; and (c) any order of the Commission under s 229(4) of the WHS Act cannot have the effect that Sydney Trains is retrospectively liable for a criminal offence against s 193 of the WHS Act (which applies to improvement notices). C. The presumption 4. The Applicant submitted (at AN [10]) that "There is nothing in the text of the WHS Act which would point against a person the subject of a PIN being potentially criminally liable for breaching a PIN which, by operation of a decision made on an internal review under s 226(2) or external review under s 229(4) of the WHS Act, was confirmed after being reviewed by an inspector". 5. However, that submission is not only incorrect but it fails to properly apply the "presumption" discussed below. 6. As the Applicant correctly identifies (at AN [8]), there is a "presumption" that statutes such as the WHS Act do not retrospectively change rights and obligations including by retrospectively extending the criminal law. 7. Contrary to that presumption, the Applicant has proceeded to analyse the WHS Act by presuming that there is retrospective application of the criminal law in the WHS Act and then looking for reasons to depart from that presumption (see, for example, AN [10]) - finding that there is none. 8. This rather misses the point. As the AN correctly notes, there is a presumption against any retrospective application of the criminal law which may only be rebutted by express words or necessary implication. 9. There is no such express words or necessary implication in the WHS Act to apply the criminal law retrospectively and Sydney Trains cannot be liable for an offence against s193 of the WHS Act in the manner asserted by the Applicant. D. Fundamental principles 10. It is useful to identify a small number of authorities that address the fundamental importance of the presumption that the criminal law does not operate retrospectively. 11. In Australian Education Union v General Manager of Fair Work Australia & Ors (2012) 246 CLR 117; [2012] HCA 19 (AEU), the High Court (per French CJ, Crennan and Kiefel JJ) said at [30]: ... In a representative democracy governed by the rule of law, it can be assumed that clear language will be used by the Parliament in enacting a statute which falsifies, retroactively, existing legal rules upon which people have ordered their affairs, exercised their rights and incurred liabilities and obligations. That assumption can be viewed as an aspect of the principle of legality, which also applies the constructional assumption that Parliament will use clear language if it intends to overthrow fundamental principles, infringe rights, or depart from the general system of law. The existence of those assumptions is, in the words of Gleeson CJ in Electrolux Home Products Pty Ltd v Australian Workers' Union (78), "a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law." 12. In Director of Public Prosecutions (Cth) v Keating (2013) 248 CLR 459; [2013] HCA 20 (Keating), the High Court (per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) said at [43]: It is not to the point to observe that ignorance of the law affords no excuse or that the prosecution is not required to prove an intention to breach a legal duty. The submission ignores that the failure to do a thing is not an offence in the absence of a legal duty to do the thing (85). As explained in Poniatowska, s 4.3 of the Code is a reflection of an idea that is fundamental to criminal responsibility: that the criminal law should be certain and its reach ascertainable by those who are subject to it (86). This idea underpins the strength of the presumption against retrospectivity in the interpretation of statutes that impose criminal liability. Mr Bennion explains the principle in this way (87): "A person cannot rely on ignorance of the law and is required to obey the law. It follows that he or she should be able to trust the law and that it should be predictable. A law that is altered retrospectively cannot be predicted. If the alteration is substantive it is therefore likely to be unjust. It is presumed that Parliament does not intend to act unjustly." [our emphasis] 13. While Sydney Trains accepts that the law can, with clear legislative intent, operate retrospectively, there is not such clear legislative intent in the WHS Act. E. The WHS Act 14. Section 99 of the WHS Act provides as follows: 99 Offence to contravene a provisional improvement notice (1) This section applies if a provisional improvement notice has been issued to a person and an inspector has not been required under section 101 to attend at the workplace. (2) The person must comply with the provisional improvement notice within the time specified in the notice. Maximum penalty- (a) in the case of an individual-575 penalty units, or (b) in the case of a body corporate-2,885 penalty units. 15. However, the operation of s99(2) is expressly amended by section 100(2) of the WHS Act. Section 100 of the WHS Act provides: 100 Request for review of provisional improvement notice (1) Within 7 days after a provisional improvement notice is issued to a person- (a) the person to whom it was issued, or (b) if the person is a worker, the person conducting the business or undertaking at the workplace at which the worker carries out work, may ask the regulator to appoint an inspector to review the notice. (2) If a request is made under subsection (1), the operation of the provisional improvement notice is stayed until the inspector makes a decision on the review. 16. It is important to note that s 100(2) expressly provides that provisional improvement notices are "stayed" in certain circumstances. As a result, from the time that a person requests SafeWork NSW to appoint an inspector to review a provisional improvement notice under s 100(1), until an inspector appointed by SafeWork NSW makes a decision on review (Stay Period), the provisional improvement notice has no effect and the relevant person is not required to comply with it. 17. Recipients of provisional improvements notices can and do conduct their affairs in the Stay Period having regard to their legal rights and liabilities existing at that time. Those rights and liabilities include the right conferred by s100(2) of the WHS Act to conduct affairs without the burden of compliance the terms of a provisional improvement notice. There is no evidence of any legislative intent, and certainly not a clear legislative intent, that the WHS Act is to operate in a manner that would impugn conduct engaged in on reliance of the rights conferred by s 100(2). 18. Section 102(3) of the WHS Act provides that: A provisional improvement notice that is confirmed (with or without changes) by an inspector is taken to be an improvement notice issued by the inspector under this Act. [our emphasis] 19. The clear language of s 102(3) of the WHS Act is that a provisional improvement notice is taken "to be" an improvement notice. That language is forward looking. That is, a provisional improvement notice is superseded and replaced by an improvement notice from the point in time that the provisional improvement notice is confirmed (with or without changes). 20. Relevantly, a provisional improvement notice is not taken "to have been", or otherwise regarded as, an improvement notice at any time prior to the provisional improvement notice being confirmed (with or without changes). 21. Accordingly, while a failure to comply with an improvement notice within the period specified in the improvement notice is an offence against s 193 of the WHS Act, there is, for the purpose of s 193 of the WHS Act, no improvement notice in place during the Stay Period or any other time prior to a provisional improvement notice being superseded by an improvement. In the absence of an improvement notice being in place, there can be no offence for the contravention of an improvement notice. 22. Further, the Applicant's submission (at AN [10]) that "a PIN can be reinstated and reinstated with retrospective effect" is not correct. Provisional improvements notices may, on review, be: (a) confirmed under s 102(1)(a) in which case the provisional improvement notice becomes an improvement notice going forward (as discussed above); or (b) confirmed with changes under s 102(1)(b) in which case the changed provisional improvement notice becomes an improvement; or (c) cancelled under s 102(1)(c) in which case there is no longer any provisional improvement notice and no improvement notice. 23. A provisional improvement notice is never "reinstated". Rather, a provisional improvement notice exists for a period of time, and then it is either cancelled or superseded by an improvement notice (in same, or some other form) going forward. 24. The interpretation of the WHS Act put forward by the Applicant would have the effect of retrospectively criminalising conduct: (a) that is expressly contemplated by s100(2) of the WHS Act; and (b) without any clear legislative intent to do so. 25. The interpretation of the WHS Act put forward by the Applicant is not only inconsistent with the fundamental principles in AEU and Keating, but it would be inconsistent with the clear intention of s 100(2) of the WHS Act which is to ensure that recipients of a provisional improvement notice are not burdened with a requirement to comply with them in circumstances where that person has exercised their right under s100(1) of the WHS Act. 26. The absurdity of the interpretation put forward by the Applicant is highlighted by a very simple example. Consider a scenario in which: (a) an HSR issues a provisional improvement notice under s 90 of the WHS Act requiring the recipient to cease taking certain steps; (b) the recipient of the provisional improvement notice requests that SafeWork NSW appoint an inspector to review the notice under s 100(1); (c) the recipient of the provisional improvement notice ceases taking the impugned steps and complies with the provisional improvement notice for the Stay Period; (d) the inspector appointed by SafeWork NSW subsequently cancels the provisional improvement notice under s 102(1)(c); (e) the recipient of the provisional improvement notice, which is now cancelled, immediately proceeds to take the previously impugned steps having been effectively informed by SafeWork NSW that it is permitted to do so; (f) the HSR subsequently exercises their right to refer the matter for internal internally review the matter under s 224 of the WHS Act within 14 days of the inspector's decision but well after the recipient of the provisional improvement notice had taken the previously impugned steps. 27. On the Applicant's case, in the above scenario, if the internal review (or any subsequent external review) ultimately upheld the provisional improvement notice (with or without changes), the recipient of the provisional improvement notice would, or at least could, be guilty of a criminal offence. There is simply nothing in Part 12 of the WHS Act which suggests any intention to apply such retrospectivity. 28. Indeed, the fact that there are mechanisms to seek a stay of a reviewable decision in the course of the internal review and external review processes (see WHS Act ss 228 and 229(3)) shows that Parliament contemplated and acknowledged that, in the absence of a stay, some reviews of reviewable decisions may have no utility. 29. Finally, Sydney Trains wishes to respond to the Applicant's suggestion (at AN [14]) that Sydney Trains determined to "thumb its nose" at the prospect of a successful review of a provisional improvement notice by a health and safety representative. 30. As the evidence demonstrated, Sydney Trains was fully cognisant of its rights and responsibilities under the WHS Act and acted in compliance with them as they existed at the time. Not only did Sydney Trains act in compliance with its rights and responsibilities under the WHS Act but it went further than necessary to understand and confirm that Inspector Issa would not issue a prohibition notice in respect to the demolition of the GAC before it proceeded to demolish the GAC as contemplated in November 2017 and authorised by decisions of the Fair Work Commission at first instance and a Full Bench of the Fair Work Commission. F. Conclusion 31. Any order of the Commission under s 229(4) of the WHS Act in these proceedings cannot have the effect that Sydney Trains is retrospectively liable for a criminal offence against s 193 of the WHS Act (which applies to improvement notices). 32. Given that the GAC does not exist, there is no utility in these proceedings and the proceedings ought be dismissed.

Principles governing summary dismissal and strike out applications

1. In Silsbury v Health Secretary in respect of Western Sydney Local Health District [2021] NSWIRComm 1004 I set out the principles governing summary dismissal and strike out applications in the following terms: Legislation 31. Section 162 of the Act is in the following terms: 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 (b) is to conduct its proceedings publicly or, if it considers it necessary, privately, and (c) may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and (d) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and (e) may sit at any place, and (f) may require a document to be served outside the State, and (g) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and (h) may dismiss at any stage any proceedings before it if it considers the proceedings are frivolous or vexatious, and (i) may exercise, on its own initiative, any function exercisable by it on application, and (j) may, on its own initiative, inquire into any industrial matter. 32. Subsection 162(2)(h) enables the Commission to dismiss the Victimisation Application at this stage of the proceedings if the Commission considers that the proceedings are "frivolous or vexatious". 33. In addition, rule 13.4 of the Uniform Civil Procedure Rules 2005 ("UCPR") has application to proceedings such as those presently before the Commission. Rule 13.4 is in the following terms: 13.4 Frivolous and vexatious proceedings (cf SCR Part 13, rule 5; DCR Part 11A, rule 3; LCR Part 10A, rule 3) (1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings - (a) the proceedings are frivolous or vexatious, or (b) no reasonable cause of action is disclosed, or (c) the proceedings are an abuse of the process of the court, The court may order that the proceedings be dismissed generally or in relation to that claim. (2) The court may receive evidence on the hearing of an application for an order under subrule (1). 34. In addition to the concepts of "frivolous or vexatious", rule 13.4 introduces the concepts of "no reasonable cause of action" and "abuse of the process of the court" into the consideration of a strike out application such as the Respondent's Motion. Authorities 35. In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, Barwick CJ stated (at 128-129): The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. I have examined the case law on the subject, to some of which I was referred in argument and to which I append a list of references. There is no need for me to discuss in any detail the various decisions, some of which were given in cases in which the inherent jurisdiction of a court was invoked and others in cases in which counterpart rules to Order 26, r. 18, were the suggested source of authority to deal summarily with the claim in question. It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance". As I have said, some of these expressions occur in cases in which the inherent jurisdiction was invoked and others in cases founded on statutory rules of court but although the material available to the court in either type of case may be different the need for exceptional caution in exercising the power whether it be inherent or under statutory rules is the same. 36. In Nagle v Tilburg [1993] 51 IR 8, the Full Court of the Industrial Court of New South Wales (Fisher CJ, Hungerford and Peterson JJ) considered the judgement of the High Court in Stevenson v Barham (1970) 136 CLR 190 and that of the Court of Appeal in Majik Markets Pty Limited v Brake and Service Centre Drummoyne Pty Limited (1991) 28 NSWLR 443, and stated (at 11-12): We would draw from those authorities the proposition that whilst it is desirable for a case to be determined at an early stage it is only open to do so at the appropriate stage of the proceedings, that is, where the facts, either established by evidence or plainly agreed in terms, enable the Court to determine what the contract or arrangement is or, at least, the parameters of the contract or arrangement. In other words, it seems to us, unless the facts are sufficiently established to enable the Court to be satisfied it has the necessary material to reach a clear and final decision on the question then the appropriate stage has not been reached for such a determination to be made. In General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, Barwick CJ held that the jurisdiction to terminate an action summarily for want of a cause of action in the plaintiff was to be sparingly employed and ought not to be used save where the lack of the cause of action was clearly demonstrated. 37. In Spencer v Commonwealth of Australia [2010] HCA 28 (1 September 2010), the High Court considered section 31A of the Federal Court of Australia Act 1976 (Cth) which is in the following terms: Summary judgment (1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is prosecuting the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding. (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. (4) This section does not limit any powers that the Court has apart from this section. (5) This section does not apply to criminal proceedings. 38. The Court stated (per French CJ and Gummow J at [22]-[25]): 22 In the Federal Court and in the Court of Appeal of Queensland, the criterion of a "reasonable prospect" of success has been understood in analogous statutory settings to mean a "real" rather than "fanciful" prospect (White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 at 312 [59] and cases there reviewed; Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 at 235 per Williams JA.). This exegesis adds little to the words of s 31A. The section authorises summary disposition of proceedings on a variety of bases under its general rubric. It will apply to the case in which the pleadings disclose no reasonable cause of action and their deficiency is incurable. It will include the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are "frivolous or vexatious or an abuse of process". The application of s 31A is not, in terms, limited to those categories. 23 Accepting that there are a number of ways in which s 31A may be applied to empower the Federal Court to dismiss a proceeding, it is to be distinguished, in its application to deficient pleadings, from rules (such as O 11 r 16 of the Federal Court Rules) which provide for the striking out of pleadings. As Lindgren J said in White Industries Aust Ltd v Federal Commissioner of Taxation (2007) 160 FCR 298 at 309 [47]. See also Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920; (2008) 252 ALR 41: "evidence may disclose that a person has or may have a 'reasonable cause of action' or 'reasonable prospects of success', yet the person's pleading does not disclose this. In such a case O 11, r 16 empowers the Court to strike out the pleading but ... s 31A(2) would not empower the Court to give judgment for the respondent against the applicant. A failure after ample opportunity to plead a reasonable cause of action may suggest that none exists and therefore that the applicant has no reasonable prospects of success, but the existence of a reasonable cause of action and the pleading of a reasonable cause of action remain distinct concepts." 24 The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128-130 per Barwick CJ; [1964] HCA 69) or on the basis that the action is frivolous or vexatious or an abuse of process (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91 per Dixon J; [1949] HCA 1). The same applies where such a disposition is sought in a summary judgment application supported by evidence. As to the latter, this Court in Fancourt v Mercantile Credits Ltd said ((1983) 154 CLR 87 at 99; [1983] HCA 25. See also Webster v Lampard (1993) 177 CLR 598 at 602-603 per Mason CJ, Deane and Dawson JJ; [1993] HCA 57.): "The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried". More recently, in Batistatos v Roads and Traffic Authority (NSW) ((2006) 226 CLR 256 at 275 [46]; [2006] HCA 27) Gleeson CJ, Gummow, Hayne and Crennan JJ repeated a statement by Gaudron, McHugh, Gummow and Hayne JJ in Agar v Hyde ((2000) 201 CLR 552 at 575-576 [57]; [2000] HCA 41) which included the following: "Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways (Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 at 91 per Dixon J; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130 per Barwick CJ.), but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." There would seem to be little distinction between those approaches and the requirement of a "real" as distinct from "fanciful" prospect of success contemplated by s 31A (In A v Essex County Council [2010] 3 WLR 509, the criterion of "real prospect of success" was variously equated to whether the plaintiff "could succeed at a trial", whether there was a "triable issue" and whether there was the "least doubt": at 523 [44] per Lord Clarke of Stone-cum-Ebony JSC, 541 [119] per Baroness Hale of Richmond JSC, 544 [133] per Lord Brown of Eaton-under-Heywood JSC and 552 [163] per Lord Kerr of Tonaghmore JSC). That proposition, however, is not inconsistent with the proposition that the criterion in s 31A may be satisfied upon grounds wider than those contained in pre-existing Rules of Court authorising summary dispositions. 25 Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a "fanciful" prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success. 39. In O'Brien v Bank of Western Australia Ltd [2013] NSWCA 71, the following was stated as constituting "summary judgement principles" (per McFarlan JA at [3]): 3 The High Court decision in Spencer v The Commonwealth [2010] HCA 28; 241 CLR 118 was concerned with s 31A(2) of the Federal Court Act 1976 (Cth) but the following principles stated in it are of general application: (a) On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]). (b) The critical question can be expressed as whether there is more than a "fanciful" prospect of success (at [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the Court to allow the action to go forward (at [54] in the judgment of the plurality). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success (ibid). (c) Powers to summarily terminate proceedings must be exercised with exceptional caution (ibid at [55]; see also French CJ and Gummow J at [24]). Grounds to strike out Frivolous proceedings 40. There is no definition of "frivolous" in the UCPR. The term is defined in the Shorter Oxford Dictionary as "of little or no value or importance, paltry; (of a claim, charge, etc) having no reasonable grounds; lacking seriousness or sense"; and in the Macquarie Dictionary as "of little or no weight, worth or importance; lacking seriousness or sense". The term "frivolous" is regularly used in conjunction with the term "vexatious", as is the case with rule 13.4 of the UCPR. Vexatious proceedings 41. In Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491, in the context of the Supreme Court Act 1970, s 84(1) (vexatious litigant), Roden J said: 1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. 2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise. 3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless. 42. The Vexatious Proceedings Act 2008, at section 6, defines "vexatious proceedings" in the following terms: 6 Meaning of "vexatious proceedings" In this Act, vexatious proceedings includes: (a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground, and (d) proceedings that are conducted to achieve a wrongful purpose, or in a way that harasses, or causes unreasonable annoyance, delay or detriment, regardless of the subjective intention or motive of the person who instituted the proceedings. No reasonable cause of action 43. The test for determining whether a reasonable cause of action is disclosed is that set forth in General Steel Industries Inc v Commissioner for Railways (NSW) (per Barwick CJ at 128-130 at [35] above). His Honour continued as follows: …Dixon J. (as he then was) sums up a number of authorities in Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 where he says (at p. 91): "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process." Although I can agree with Latham C.J. in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings (at p. 84), in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.
2. It is accepted that the power to summarily dismiss matter such as the present Application is to be "sparingly employed" and only to be utilised in a case that is "'so obviously untenable that it cannot possibly succeed'; 'manifestly groundless'; 'so manifestly faulty that it does not admit of argument'; 'discloses a case which the Court is satisfied cannot succeed'; 'under no possibility can there be a good cause of action'; 'be manifest that to allow them' (the pleadings) 'to stand would involve useless expense'" (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, per Barwick CJ (at 128-129). This case falls within some, if not all, of the above descriptors.
3. Sydney Trains has brought its strike out motion pursuant to r 13.4 of the Uniform Civil Procedure Rules 2005 ("UCPR"). I deal with each limb of that rule as applied to the facts of this case below.

Frivolous (r 13.4(1)(a) UCPR)

1. In order to summarily dismiss these proceedings pursuant to subrule 13.4(1)(a) of the UCPR on the ground that the proceedings are frivolous, I would have to find that the Application is "of little or no value or importance, paltry; (of a claim, charge, etc) having no reasonable grounds; lacking seriousness or sense" (Shorter Oxford Dictionary) or "of little or no weight, worth or importance; lacking seriousness or sense" (Macquarie Dictionary). I decline to make such a finding.
2. Retention of the GAC Booth at Liverpool Railway Station was seen by Mr Tudor in his role as the HSR as a matter of significant importance from a work health and safety perspective for the reasons set out at paragraphs 28-35 of his witness statement (at [23]). I do not doubt the genuineness with which Mr Tudor held those views.
3. Reinstatement of the GAC Booth was one of the prime motivations behind making the Application (paragraph 36 at [25]).
4. I decline to order that the Application be summarily dismissed on the ground that the proceedings are frivolous.

Vexatious (r 13.4(1)(a) UCPR)

1. In order to summarily dismiss these proceedings pursuant to subrule 13.4(1)(a) of the UCPR on the ground that the proceedings are vexatious, I would have to find that the Application was "instituted with the intention of annoying or embarrassing" Sydney Trains or that the proceedings were "brought for collateral purposes, and not for the purpose of having the [Commission] adjudicate on the issues to which they give rise" or are "so obviously untenable or manifestly groundless as to be utterly hopeless" (Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491 per Roden J). Again, I decline to make such a finding.
2. There is nothing in the evidence or submissions before the Commission that would support a finding that, in making the Application, Mr Tudor's intention was to annoy or embarrass Sydney Trains or that the proceedings were instituted for a collateral purpose or for any purpose other than to have this Commission "confirm and vary the PIN requiring the Intervener to take steps to re-construct the GAC or otherwise take steps to address the health and safety issues raised by the inappropriate removal of the GAC contrary to the PIN in the middle of the pandemic" (paragraph 60 at [26]).

Abuse of process (r 13.4(1)(c) UCPR)

1. Taking the different components of r 13.4 slightly out of order, I next deal with the assertion by Sydney Trains that the Application constitutes an abuse of process. Sydney Trains submits that the Application is, in reality, an attempt by Mr Tudor to re-litigate an issue, namely the obligation on Sydney Trains to retain the GAC Booth at Liverpool Railway Station on work health and safety grounds, in circumstances where that issue has been determined in favour of Sydney Trains in proceedings in the Fair Work Commission (paragraphs 30-53 at [21]; paragraphs 4-16 at [27]).
2. Mr Tudor strongly refutes this assertion (paragraphs 30-56 at [26]).
3. It is the case that a number of the issues raised by Mr Tudor in these proceedings, in support of his quest to have the GAC Booth reconstructed at Liverpool Railway Station, were heard and determined against the RTBU in the Fair Work Commission by Deputy President Bull at first instance and confirmed by a Full Bench on appeal. I note that Deputy president Bull had the benefit of an on site inspection on 9 September 2019 when the GAC Booth was in situ at Liverpool Railway Station.
4. In his decision of 9 April 2020 Deputy President Bull stated (footnotes omitted): [77] I accept that there is a risk that the Station employees may encounter an altercation or interaction with passengers or members of the public that causes an employee concern for their safety. On this basis Sydney Trains should as far as is reasonably practicable put in place measures to eliminate or reduce this risk. In doing so it is well understood that this duty does not require an employer to take every possible step available to maintain a safe working environment, only those that are reasonably practicable. [78] The secure workplace identified by Sydney Trains is directly opposite the existing GAC; while preferred by employees it is no more accessible than the secure workplace identified by Sydney Trains. The GAC does not have many of the services the secure workplace provides, particularly following the undertakings provided by Sydney Trains to address the genuine concerns raised by the RTBU. [79] The preference of Station employees is that the GAC remains in conjunction with the installation of a Hub. This preference, while understandable, was not made out based on a safety case. While the GAC is the employees' preferred safe place, it is not the only safe space at the Liverpool Train Station. While on the platforms employees are able to retreat into the buildings on the platforms and when in the paid concourse area can access the Sydney Trains-nominated secure workplace (which is also accessible from the unpaid area of the concourse) with no more difficulty than accessing the GAC. [80] It is true that the GAC allows employees to remain customer facing. Under the Sydney Trains SAFER or THREAT models personal safety is an employee's first priority and the models do not require employees to continue to provide passenger services when they consider they are under threat. Sydney Trains throughout this Hearing made it clear that customer service is not required when an employee is under a safety threat. [81] While the GAC provides an additional safe space for station staff it has not been demonstrated to be either essential to the provision of a safe space for station employees or a superior safe space to that of the secure workplace Sydney Trains has made available for employees when a safety risk is identified. [82] Having regard to the evidence of Ms Streimer (which was not seriously contested on this point) I am satisfied that Sydney Trains has consulted with the relevant employees and their representative the RTBU, and has undertaken a risk assessment on the removal of the GAC as per its Agreement obligations in regard to providing a safe workplace. [83] Sydney Trains has identified the risks associated with its proposed change, has put in place appropriate control measures, and has provided during the proceedings undertakings to take further measures to resolve the concerns raised by the RTBU. I am therefore satisfied that Sydney Trains has complied with its safety obligations.
5. The case presented by Mr Tudor in these proceedings also stressed the importance of the GAC Booth as a secure workplace which was used to protect Sydney Trains' employees from potential altercations with passengers and members of the public (see paragraphs 28-48 at [23]).
6. It would be an odd outcome if, in these proceedings, I was to form a contrary view to that formed by Deputy President Bull as to the need for the GAC Booth as a safe space to ensure the security of the employees. If that were the only issue for determination in both sets of proceedings, I would be inclined to dismiss the Application as an abuse of process.
7. However, much of the case presented by Mr Tudor concerns the role the GAC Booth played in assisting in the prevention of employees becoming infected with the COVID-19 virus. Because of the timing of the matter before Deputy President Bull, this was not an issue that was ventilated in those proceedings.
8. On appeal, the Full Bench noted the following: [13] The RTBU also sought that if permission to appeal was granted, this Full Bench exercise its discretion under s.607(2) of the FW Act to admit further evidence as part of this appeal concerning the utilisation of the GAC during the COVD-19 pandemic. In that regard it noted that the matter was last heard on 10 March 2020, prior to COVID-19 being declared a global pandemic by the World Health Organisation on 11 March 2020. [14] The RTBU contends that since the decision was handed down, Sydney Trains has directed staff to utilise the GAC as a safe space to work from, and to remain passenger facing during the pandemic. In that light, due to the timing of the matter, the decision and the emergence of COVID-19, such evidence could not be admitted at first instance. The new evidence, from Richard Tudor, Customer Service Attendant, Liverpool Railway Station and elected RTBU delegate, was said to be relevant as it would inform the Commission of the reasonableness of the Respondent removing the GAC.
9. With respect to the application by the RTBU to have the foreshadowed new evidence admitted on appeal, the Full Bench stated: [39] We have decided that permission to appeal will not be given, and given the basis upon which the proposed new evidence was advanced by the RTBU, this aspect is moot. In any event, the principles relating to the exercise of discretion under section 607(2) of the FW Act are generally summarised in Power Projects International Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and include: • It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; • The evidence must be such that there must be a high degree of probability that there would be a different verdict; and • The evidence must be credible. [40] In this matter, there is no dispute that the foreshadowed evidence may be credible. However as submitted by Sydney Rail, the events concerned occurred prior to the Decision being handed down and no application was made to reopen the matter. Further, for reasons also largely advanced by Sydney Trains we do not consider that evidence is such that there a high degree of probability that there would be a different outcome given all of the circumstances.
10. It cannot be said that the role of the GAC Booth in the protection of employees from contracting the COVID-19 virus is a matter that has been considered and finally determined in favour of Sydney Trains by the Fair Work Commission. Raising the matter in these proceedings does not constitute an attempt to re-litigate an issue that has been heard and determined in another proceeding or an abuse of process by Mr Tudor. It follows that I reject the submissions put on behalf of Sydney Trains at paragraphs 37-53 (at [21]).

No reasonable cause of action (r 13.4(1)(b) UCPR)

1. The outcome of this external review that Mr Tudor is seeking is the revocation of the decision of the SafeWork inspector to cancel the PIN and the revocation of the internal review decision which confirmed the inspector's decision. The effect of this would be to confirm the PIN issued by Mr Tudor. However, the GAC Booth had been removed from Liverpool Railway Station on 20 May 2021 at a time when the PIN had been stayed by operation of s 100(2) of the WHS Act.
2. Initially, Mr Tudor claimed that the Commission should affirm the PIN issued by him and make an order requiring Sydney Trains to "reinstate the GAC on all station platforms affected by the removal of previous structures" (paragraph 36 at [25]). However, during the hearing on 12 November 2021, Mr Boncardo, stated "Well, plainly, that relief is not being sought. That is in error and what that should refer to is to reinstate the GAC on the platform at Liverpool Station" (see also paragraph 60 at [26]).
3. It was also put on behalf of Mr Tudor that "there is utility in confirming the PIN as the setting aside of the internal review decision and Inspector Issa's decision will entail that there was failure to comply with the PIN by the Intervener and thus a breach of s 90 of the WHS Act resulting in an offence contrary to s 99 of the WHS Act. There is no unfairness to the Intervener if this occurs, as it knowingly (and haughtily) hedged its bets by ignoring the PIN and proceeded to arrange for the GAC to be removed. It will be deserving of sanction for any breach of s 99. Moreover, in any proceedings which lead to conviction for a breach of s 99, restoration orders under s 237 can be obtained to remedy matters caused by the commission of the offence, including re-making the GAC" (paragraph 59 at [26]). However, during the hearing, Mr Boncardo indicated that he didn't press this argument. The terms of s 99(1) of the WHS Act make it clear that the section applies if a PIN has been issued and an inspector has not been required under s 101 to attend the workplace, which si what occurred in this matter. Instead, Mr Boncardo foreshadowed a different point in respect of s 102(3) of the WHS Act.
4. As I understand the argument, it is put that the Application has utility because, if, on external review, the Commission revokes the decision of the inspector to cancel the PIN and revokes the internal review decision, the PIN, by operation of s 102(3) of the WHS Act is taken to be an improvement notice issued by the inspector under the WHS Act. In these circumstances, Sydney Trains would be liable to be prosecuted in court for non-compliance with s 193 of the WHS Act in which case the court may order, pursuant to s 237 of the WHS Act "the offender to take such steps as are specified in the order, within the period so specified, to remedy any matter caused by the commission of the offence that appears to the court to be within the offender's power to remedy", in other words, to order Sydney Trains to reinstate the GAC Booth at Liverpool Railway Station.
5. Dealing firstly with the submission that the Commission should confirm and vary the PIN to order Sydney Trains to reinstate the GAC Booth at Liverpool Railway Station, there is ample material before the Commission for me to form the opinion that the case in favour of such an outcome meets the tests set out in General Steel Industries.
6. Apart from the COVID-19 issue, all of the other work health and safety arguments in support of the need for the GAC Booth at Liverpool Railway Station have been authoritatively determined against it in the Fair Work Commission.
7. Mr Tudor has put a substantial case to the Commission based on the need for the GAC Booth in the context of the COVID-19 pandemic and Mr Walsh's commitment to the RTBU on 9 April 2020 "that we will not proceed to remove the GAC Booth until after the Covid 19 pandemic situation" (at [4]). The "Covid 19 pandemic situation" has changed considerably since that commitment was given and nothing that has been put by or on behalf of Mr Tudor in these proceedings, taking his case at its highest, persuades me that the Commission would make an order that requires Sydney Trains to reinstate the GAC Booth at Liverpool Railway Station. The Application should, on that basis, be dismissed.
8. Dealing next with the submission referred to at [60] above, I note the concession made on behalf of Mr Tudor that the argument "is not advanced because his purpose is to seek to have the Intervener prosecuted. Rather, it is to counter the contention made by the Intervener that there is no utility in the proceedings, given that it has already demolished the Garrison" (paragraph 2 at [36]).
9. Restoration of the GAC Booth at Liverpool Railway Station by this means would require: (i) firstly, that the Commission revoke the inspector's decision to cancel the PIN and the internal review decision in circumstances where, on the vast amount of material currently before the Commission, no case for doing so has been made out; and (ii) secondly, that a prosecution pursuant to s 193 of the WHS Act be initiated against Sydney Trains for breaching the PIN which had retrospectively become, by virtue of the Commission upholding the external review, an improvement notice pursuant s 102(3), in circumstances where the regulator, SafeWork, agrees that the PIN should have been cancelled in the first place; and (iii) thirdly, that the court dealing with the prosecution convict Sydney Trains of an offence and make an order for restoration pursuant to s 237 that Sydney Trains reconstruct the GAC Booth at Liverpool Railway Station.
10. The prospects of all of these things happening are so remote as to not warrant further consideration. Further to this, I agree with, and accept as correct, the submissions put on behalf of Sydney Trains on its potential criminal liability at [37]. The Application must be dismissed.

Costs

1. Sydney Trains has made an application for a costs order in its favour on an indemnity basis. I have carefully considered paragraphs 11-18 and 67-68 of Sydney Trains' written submissions (at [21]). As Sydney Trains has rightly conceded, pursuant to s 181 of the Industrial Relations Act 1996, the power to award costs in matters such as this is discretionary.
2. In this matter, I have found against Sydney Trains on its claim that the Application was frivolous or vexatious or that it constituted an abuse of process. However, I have determined that the Application discloses has no reasonable cause of action. That determination does not, however, constitute a finding of bad faith on the part of Mr Tudor.
3. The criticism levelled by Mr Tudor at Sydney Trains by for "running the gauntlet" and demolishing the GAC Booth before the SafeWork inspector had finalised his review of the PIN is understandable. Sydney Trains took the chance that the PIN would be cancelled and proceeded on this basis. Had the PIN been confirmed, the outcome of these proceedings may well have been different.
4. In the exercise of my discretion, and taking into account that much of the case mounted by Sydney Trains has been rejected, I decline to make any order for costs in these proceedings.

Orders

1. The application for external review made by Richard Tudor pursuant to s 229 of the Work Health and Safety Act 2011 on 5 July 2021 is dismissed.
2. Both parties and the Intervenor are to bear their own costs of these proceedings. John Murphy Commissioner

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: 24 June 2022