Abyss Demolition Pty Ltd v The regulator under the Work Health and Safety Act 2011 [2018] QIRC 13

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Abyss Demolition Pty Ltd v The regulator under the Work Health and Safety Act 2011 [2018] QIRC 013 PARTIES: Abyss Demolition Pty Ltd (applicant) v The regulator under the Work Health and Safety Act 2011 (respondent) CASE NO: WHS/2018/14 PROCEEDING: Review by commission DELIVERED ON: 13 February 2018 HEARING DATES: On the papers MEMBERS: Deputy President O'Connor ORDERS: 1. The decision of the regulator under the Work Health and Safety Act 2011 is set aside. 2. The issue is returned to the decision- maker for an internal review to be conducted. 3. The decision-maker must make the decision within fourteen days of this decision being received. CATCHWORDS: WORK HEALTH AND SAFETY LAW – application for external review – where internal review taken to confirm decision – issue returned to decision-maker for internal review LEGISLATION: CASES: Work Health and Safety Act 2011 (Qld) s 223, s 226, s 229, s 229A, s 229B, s 229D, s 229E, Schedule 2A Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 -- 1 of 3 -- Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 Reasons for Decision [1] The applicant in this matter, Abyss Demolition Pty Ltd, seeks an external review of a decision of the respondent. [2] On 13 January 2018 an application was filed in the Industrial Registry seeking an external review of a confirmation of a decision made by an inspector to issue an improvement notice and a prohibition notice. [3] By reason of an administrative oversight by the regulator no internal review was undertaken within 14 days after the application for internal review was received. That oversight is the ground upon which Abyss Demolition seeks external review. [4] Section 226(1) of the Work Health and Safety Act 2011 (Qld) ("the Act") requires that the "internal reviewer must review the reviewable decision and make a decision as soon as is reasonably practicable and within 14 days after the application for internal review is received." [5] As a consequence of the oversight, s 226(6) was engaged and the decision subject to the internal review was "taken to have been confirmed by the internal reviewer." [6] It is not in dispute that the decision by the inspector to issue notices under ss 191 and 195 is a reviewable for the purposes of Schedule 2A of the Act. The external review of ss 191 and 195 decisions falls within the jurisdiction of this Commission. [7] Section 229D of the Act outlines the procedure for hearing reviews before the Commission. Specifically, s 229D(2) states that an application for review is to be dealt with by way of rehearing, unaffected by the decision. In Da Costa v Cockburn Salvage & Trading Pty Ltd, Windeyer J, in summarising a decision of Dixon J's, wrote that: "His Honour's observations there shew that, in the exercise of its appellate jurisdiction, this Court has full authority to decide whether a judgment of the court below ought or ought not to have been given on the evidence before it seen in the light of the law as it then stood. Such an appeal on both fact and law, although limited to the material before the court below, may be conveniently called a re- hearing,…"1 1 Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192, 208. -- 2 of 3 -- [8] It follows then that the task of the Commission in this review is to decide whether the decision of the decision maker below should or should not have been made on the evidence before it seen in the light of the law as it then stood. [9] In the context of an external review under the Act the reasons of the decision-maker for the making of a decision must be sufficient to fulfil the purposes required of them, that is to let the person whose rights, privileges or interests are affected know why a decision was made. [10] The reasons of the decision maker must explain the "actual path of reasoning" in sufficient detail to enable the Commission to ascertain whether the decision under review does or does not involve any error.2 [11] As a consequence of the automatic confirmation of the inspector's decision, the Commission does not have the benefit of all of the material or information upon which the inspector relied to issue the improve notice and the prohibition notice. Moreover, the content of the application, aside from stating that the decisions of the inspector were taken to be confirmed, has not properly articulated the grounds for the making of the application. Why, for instance, is the automatic confirmation not appropriate? In the application there is no proposed answer to such a question. [12] In the circumstances, it seems that the appropriate course to adopt is to set aside the internal review decision and remit the issue back to the regulator to permit an internal review to be conducted. Order 1. The decision of the regulator under the Work Health and Safety Act 2011 is set aside. 2. The issue is returned to the decision-maker for an internal review to be conducted. 3. The decision-maker must make the decision within fourteen days of this decision being received. 2 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 501 [55]. -- 3 of 3 --