Hindmarsh Construction Australia Pty Ltd v Work Health and Safety Commissioner of the Act

[2025] ACTSC 203

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Hindmarsh Construction Australia Pty Ltd v Work Health and Safety Commissioner of the ACT

Citation: 

[2025] ACTSC 203

Hearing Date: 

16 May 2025

Decision Date: 

16 May 2025

Before:

McCallum CJ

Decision: 

(1)       The decision of the first defendant made on 19 March 2025 (the deemed decision) is set aside.

(2)       Remit the plaintiff’s application for internal review to the first defendant to make a decision according to law within 14 days.

(3)       The first defendant is to pay the costs of the proceedings.

Catchwords: 

CIVIL LAW – Administrative Law – Judicial review – Work Health and Safety Act – Where review sought of deemed decision – whether court has power to review a deemed decision

Legislation Cited: 

Administrative Decisions (Judicial Review) Act 1989 (ACT) s 17

Work Health and Safety Act 2011 (ACT) ss 224, 226(6), 227(b)

Parties: 

Hindmarsh Construction Australia Pty Ltd ( Applicant)

Work Health and Safety Commissioner of the ACT ( Respondent)

Jodie Fletcher (Respondent)

Representation: 

Counsel

R Coffey ( Applicant)

M Gemmell ( Respondent)

Solicitors

Pinsent Masons ( Applicant)

ACT Government Solicitor ( Respondent)

File Number:

SC 135 of 2025

McCALLUM CJ:       

EX TEMPORE REASONS - REVISED

1․Before the Court is an originating application for judicial review of a decision of the Work Health and Safety Commissioner of the Australian Capital Territory.  The order in respect of which review is sought is a prohibition notice issued on 12 February 2025 to Hindmarsh Construction Australia Pty Ltd prohibiting Hindmarsh from allowing or directing a worker to work from a particular kind of formwork deck for particular purposes due to the risk of a worker falling approximately 2 metres from such a deck.  The notice was issued in circumstances where, the previous day, exactly that had occurred.

2․On 26 February 2025, Hindmarsh sought internal review of the prohibition notice and made submissions in support of that application to WorkSafe ACT, as allowed under s 224 of the Work Health and Safety Act 2011 (ACT). The Act provides that an internal review is to be carried out within 14 days. However, the Commissioner was unable to complete that task within that relatively tight statutory timeframe. In that circumstance, pursuant to s 226(6) of the Work Health and Safety Act, “the decision is taken to have been confirmed by the internal reviewer”.

3․The originating application was accompanied by an application in proceeding returnable today in the civil applications list seeking, among other things, an interim order suspending the operation of the reviewable decision – that is, the prohibition order – until the determination of the proceedings.  Fortunately, this morning, the representatives of the parties have reached an agreement that obviates the need for the Court to determine that difficult question; that is, whether an order made for the safety of workers should be suspended pending the determination of the judicial review proceedings.  Instead, the parties are in agreement, in practical effect, that the matter should be remitted to the Commissioner to undertake the internal review within a further 14 days from today.  

4․The question that remains is what form of order can or should be made to give effect to that practical outcome.

5․The Court has been assisted in considering that issue by a helpful and comprehensive outline of submissions prepared by Mr Coffey, counsel for the plaintiff.  It is plain from the matters addressed in his submissions that by far the most convenient course for both parties is for the internal review process that, in effect, missed the boat to now be undertaken. That is because, first, the plaintiff prepared and provided to the Commissioner comprehensive submissions addressing those issues. Secondly, it is obvious that the Work Health and Safety Commissioner would be better qualified than the Court to determine the proper fate of the prohibition order, particularly in circumstances where there is evidence (filed in support of the judicial review application) that addresses remedial steps that have been taken by the builder to address the apparent danger of the platforms in question.

6․The submissions further note that the carrying out of an internal review may narrow the issues in dispute, reduce the costs of filing and conducting proceedings for external review and, as a separate practical consequence, will result in the provision of a statement of reasons for the internal review in accordance with the requirement of s 227(b) of the Work Health and Safety Act.  In any subsequent judicial review proceedings, or indeed any proceedings in the ACAT that may subsequently be brought if the review is unsuccessful for the plaintiff, a statement of reasons will facilitate the review of the decision by whichever authority is tasked with that exercise.

7․Mr Coffey further contends that there is a real question to be determined about whether the statutory threshold for the making of the prohibition order was satisfied but it is not possible for me to determine the strength of that contention on the material before me.

8․In any event, the parties being in furious agreement that internal review should now occur, it behoves the Court to consider in a sensible and practical way what order can be made to facilitate that outcome. In that context, Mr Coffey drew my attention to s 17 of the Administrative Decisions (Judicial Review) Act 1989 (ACT), which sets out the powers of this Court on application for an order of review in relation to a failure to make a decision, or a failure to make a decision within the period within which the decision was required to be made. That section provides that, in such circumstances, the Supreme Court may, in its discretion, make all or any of the following orders:

(a)an order directing the making of the decision;

(b)an order declaring the rights of the parties in relation to the making of the decision;

(c)an order directing any of the parties to do, or to refrain from doing, anything to do justice between the parties.

9․In the circumstances, I am satisfied that it is appropriate to make orders in the terms proposed by the parties.  The document provided notes three matters of history which I have recited in these reasons and then seeks orders by consent that the decision by the first defendant, which is the deemed decision confirming the prohibition order, be set aside and an order remitting the application for internal review to the first defendant to make a decision according to law within 14 days.

10․It might alternatively have been appropriate to make an order directing the first defendant to make the decision. However, that is an order framed more in terms of mandamus, which is appropriate where a party is refusing to do that which they are required by law to do. Here, the first defendant consents to the relief sought. I am satisfied that it is within the scope of the powers listed in s 17(3) for the Court, in effect, to set aside the deemed decision and remit the matter for internal review as proposed.

11․Accordingly, I note the matters set out in paragraphs 1, 2, and 3 of the consent orders and make orders (1) and (2) in those orders.

Costs

12․In these proceedings I have, earlier today, given my reasons for making orders which, while by consent, were novel in the sense that there was an issue as to whether the Court had power to set aside a deemed decision of the Work Health and Safety Commissioner.  While those orders were by consent, the question of costs is not.

13․The plaintiff having been successful in obtaining the relief sought – that is, that an internal review of the prohibition order against it be carried out – seeks its costs.  The defendants contend that the appropriate order should be that each party bear its own costs.

14․The defendants’ position is based on the matters articulated in a letter dated 13 May 2025, in which a number of reasons or circumstances were identified to support the position now contended for as to costs.  Some of those matters delve into the minutiae of the dealings between the parties or alternative courses that could have been taken by the plaintiff after it found itself in the position where, through no fault of its own, it was on the wrong end of a deemed confirmation of the prohibition order, internal review of which it sought.

15․I do not think it is necessary or appropriate to descend to consideration of those individual matters because the position, in sum, is that the reason the plaintiff had to bring proceedings, either in the Supreme Court or in the ACAT, was that the defendant did not make a substantive decision within the 14 day period allowed under the Act, after which a deemed refusal or confirmation of the prohibition order takes effect.  I note in passing that the period of 14 days, having regard to the complexity of the matters no doubt required to be considered by the Commissioner, is relatively short, as I observed in my primary decision.  Be that as it may, that is the period allowed under the statute.  As a matter of statutory construction, the Court should be guided by the fact that the statute, in effect, regards it as a decision that should be made within that period.

16․There is a suggestion in the defendants’ submissions that the plaintiff could, more appropriately and more cheaply, have commenced proceedings in the ACAT rather than in this Court.  However, as noted in the defendants’ own letter, a deemed decision having been made, the defendants were unable to make a decision without giving rise to potential legal complexities.  It was for that reason that I heard submissions from both parties this morning as to whether I had power to remit the matter for the internal decision to be made, notwithstanding the fact that the first defendant was an enthusiastic consenter to that course.  In all the circumstances, there was nothing unreasonable about the plaintiff’s decision to approach this Court for the somewhat unusual relief sought.  Accordingly, I consider that the usual rule that costs follow the event should apply.

17․I order the first defendant to pay the plaintiff’s costs of the proceedings, which I note are now finalised.

Orders

18․I make the following orders:

(1)The decision by the first defendant on 19 March 2025 (the deemed decision) is set aside.

(2)An order remitting the plaintiff’s application for internal review to the first defendant to make a decision according to law within 14 days.

(3)The first defendant is to pay the costs of the proceedings.

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum

Associate:

Date: