Aurora Construction Materials Pty Ltd v Victorian WorkCover Authority

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2016 05249

AURORA CONSTRUCTION MATERIALS PTY LTD (ACN 126 837 483)	First Appellant
EPPING TRANSPORT PTY LTD (ACN 126 847 587)	Second Appellant
v
STACEY DE LUCA (VICTORIAN WORKCOVER AUTHORITY)	Respondent

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 August 2017
DATE OF JUDGMENT:	22 September 2017
CASE MAY BE CITED AS:	Aurora Construction Materials Pty Ltd v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2017] VSC 573

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OCCUPATIONAL HEALTH AND SAFETY — Workplace incident — Investigation of suspected contravention of Act or regulations — Notices issued by the VWA requiring the giving of information and the production of documents — Whether Notices valid — Whether reasonable excuse for non-compliance with Notices — Occupational Health and Safety Act 2004 ss 9, 100, 111, 131, 132.

APPEALS — Appeals on questions of law from Magistrate’s orders — Fines without conviction for non-compliance with VWA statutory notices requiring the giving of information and production of documents — Appeal dismissed — Criminal Procedure Act2009 s 272.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr B Walters SC with Mr R O’Neill	Sparke Helmore
For the Respondent	Mr A Palmer with Mr D Chisholm	Victorian WorkCover Authority

HIS HONOUR:

Introduction

1. The two appellant companies were fined without conviction in the Magistrates’ Court for failing to comply with Notices issued on behalf of the Victorian WorkCover Authority, requiring them to give information and produce documents. They appeal against the Magistrate’s decision contending that the Notices were invalid in form and that the Magistrate wrongly held that the prosecution had proved that neither of them had a reasonable excuse for not complying with the Notices.

1. The Notices issued on behalf of the Victorian WorkCover Authority (‘VWA’) under s 9 of the Occupational Health and Safety Act 2004 (‘the Act’) required the appellant companies, Aurora Construction Materials Pty Ltd (‘Aurora’) and Epping Transport Pty Ltd (‘Epping’), to give information and provide documents to the VWA. The Notices were issued in a VWA investigation into a motor vehicle accident in which the driver, an employee of Epping, was seriously injured and made paraplegic. I will generally refer both to Aurora and Epping as ‘the companies’. The VWA successfully prosecuted the two companies in the Magistrates’ Court for failing to comply with the requirements of the Notices. The companies were fined without conviction and ordered to pay costs. They appeal on questions of law from the Magistrates’ Court orders.

1. In essence, the companies’ grounds of appeal were: first, that the Notices were deficient in form and therefore invalid, and secondly, that even if the Notices were valid, the appellant companies had a reasonable excuse within the meaning of s 9(2) for failing to comply with their requirements.

1. Section 9 relevantly provides:

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…