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
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’).
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.
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…
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- Case
- [2018] VSCA 165
- Decision Date
CaseChat Overview and Summary
The court considered the purpose and function of the notices, as well as the state of the investigators’ knowledge at the time of issuing the notices. It held that the notices were valid as they provided sufficient details for the company to understand the scope and purpose of the investigation. The court emphasised that the notices did not need to disclose all the details of the suspected contravention but had to enable the recipients to assess the validity of the notices and respond appropriately. The court further noted that the validity of the notices was not dependent on the accuracy of the investigators’ knowledge but rather on whether the notices were issued in good faith and met the statutory requirements.
In conclusion, the court dismissed the appeal brought by Aurora Construction Materials, finding that the notices issued by the Victorian WorkCover Authority were valid. The court granted leave to appeal to the Supreme Court of Victoria, but the appeal was subsequently dismissed. The decision reinforces the importance of compliance with statutory requirements when issuing notices for occupational health and safety investigations and highlights the need for notices to provide enough information for the recipients to assess their validity and respond accordingly.
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