Aurora Construction Materials Pty Ltd v Victorian WorkCover Authority

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2017 0114

AURORA CONSTRUCTION MATERIALS PTY LTD

and

First Applicant

EPPING TRANSPORT PTY LTD

Second Applicant

V

VICTORIAN WORKCOVER AUTHORITY

Respondent

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JUDGES:	MAXWELL P, TATE and KAYE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 April 2018
DATE OF JUDGMENT:	29 June 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 165
JUDGMENT APPEALED FROM:	[2017] VSC 573 (Ginnane J)

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OCCUPATIONAL HEALTH AND SAFETY – Investigations – Statutory notices – Validity – Notices requiring giving of information and production of documents – Notices issued for purpose of investigating suspected contravention – Whether notices adequately stated nature of suspected contravention – Whether recipients able to assess validity of notices – Function of notices – State of investigators’ knowledge – Notices valid – Leave to appeal granted – Appeal dismissed – Occupational Health and Safety Act 2004 ss 9, 100, 104, 111, 131, 132.

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APPEARANCES:	Counsel	Solicitors
Applicants	Mr A Young QC	Sparke Helmore Lawyers
with Mr R O’Neill
Respondent	Mr A Palmer with Mr D Chisholm	Solicitor for the Victorian WorkCover Authority

MAXWELL P:

Introduction

1. In December 2011, a concrete truck failed to take a left-hand bend at the bottom of a hill and tipped over (‘the accident’).  The driver of the truck was seriously injured.  There was an initial investigation by the Victorian WorkCover Authority (‘the Authority’) but no action was taken.  The time limit for prosecution[1] expired in December 2013.

   [1]Occupational Health and Safety Act 2004 s 132 (‘OHSA’).

1. In July 2014, the respondent, an inspector with the Authority, commenced a further investigation. On behalf of the Authority, she issued a notice to each applicant under s 9(1) of the OHSA, which provides as follows:

9        Power to obtain information

(1) For the purpose of ascertaining whether this Act or the regulations have been complied with or of investigating a suspected contravention, the Authority may (by written notice) require a person to—

(a)give the Authority such information as the Authority requires;  or

(b)produce a document in the custody or control of the person.

1. The relevant part of each notice was in these terms:

1.The Victorian WorkCover Authority (the Authority) is conducting an investigation arising from a workplace incident that occurred on Bulla Road, Bulla, Victoria on 5 December 2011.  In that incident, [the driver] sustained serious injuries when the Kenworth (2008) T350 Concrete Agitator he was operating failed to brake (the incident).

Requirement to Give Information Pursuant to s 9(1)(a) of the Act:

2.For the purpose of investigating suspected contraventions of the Occupational Health and Safety Act 2004 (and associated regulations), the Authority requires [the recipient] to give the Authority the information described in Schedule 1 to this Notice by 4:30pm on 06/10/2014 (the Compliance Date).

Requirement to Produce Documents Pursuant to s 9(1)(b) of the Act:

3.For the purpose of investigating suspected contraventions of the Occupational Health and Safety Act 2004 (and associated regulations), the Authority requires [the recipient] to produce to the Authority the documents which are…