Junee Railway Workshop Pty Ltd v Independent Transport Safety and Reliability Regulator
[2006] NSWADT 184
•03/17/2006
CITATION: Junee Railway Workshop Pty Ltd v Independent Transport Safety and Reliability Regulator [2006] NSWADT 184 DIVISION: General Division PARTIES: APPLICANT
Junee Railway Workshop Pty Ltd
RESPONDENT
Independent Transport Safety and Reliability RegulatorFILE NUMBER: 063119 HEARING DATES: 17/03/06 SUBMISSIONS CLOSED: 03/17/2006 EXTEMPORE DECISION DATE: 03/17/2006
DATE OF DECISION:
06/16/2006BEFORE: O'Connor K - DCJ (President) CATCHWORDS: Stay of Prohibition Notice MATTER FOR DECISION: Principal matter CASES CITED: Doyle v Commissioner of Police [1999] NSWADT 84 REPRESENTATION: APPLICANT
RESPONDENT
N Williams SC instructed by Watson Mangioni Lawyers
S Thompson, solicitor, Sparke Helmore SolicitorsORDERS: 1. Pursuant to section 57 of the Rail Safety Act 2002 (NSW), Prohibition Notice A28114 issued on 15 March 2006 by the Respondent to the Applicant is stayed until 31 March 2006; 2. Order 1 is granted subject to the following undertakings given by the Applicant in relation to all rolling stock movements to, from or within the Applicant’s site at the Junee Roundhouse in Junee, New South Wales (the “Site”), for the period the stay is in force:; (a) prior to each proposed movement to, from or within the Site, a movement plan and risk assessment of the proposed movement shall be conducted by the Applicant’s general manager, Mr Andrew Clinton, the Applicant’s Workshop foreman, Mr Gordon Groves and the individual personnel involved in the proposed movement;; (b) the movement plan and risk assessment in (a) shall be documented and recorded in a register of temporary movements;; (c) the movement plan and risk assessment shall confirm the proposed path of movement is free of any obstacles or interferences;; (d) the risk assessment shall confirm that the points along the proposed path are set in the correct position for the proposed movement;; (e) each of the participants in the proposed movement shall have the authority to call for the immediate cessation of the proposed movement;; (f) the movement shall be conducted in accordance with the movement plan and risk assessment;; (g) if any persons other than Mr Andrew Clinton, Mr Gordon Groves and the individual personnel involved in the proposed movement come within 10 metres of the path of the proposed movement, the movement shall be immediately stopped until the area is clear;; (h) a copy of the risk assessment shall be sent to the Respondent together with a report as to the outcome of the movement;; (i) in addition, in relation to movements in and out of the Site, the Australian Rail Track Corporation is to be given a copy of the movement plan and risk assessment prior to the movement occurring; and; (j) all operators of rolling stock from, to and within the Site and all persons working within the Site are to be made aware of the procedures set out in (a)-(i) above; 3. The reference to rolling stock movements in order 2 above includes any movement occurring wholly within the Site that does not cross the boundary between Australian Rail Track Corporation’s infrastructure and the Site, as well as movements across that boundary; 4. The parties have liberty to apply.
REASONS FOR DECISION
Background
1 The Tribunal has before it an application by the recipient of a prohibition notice under the Rail Safety Act 2002 (the Act), for a stay of the operation of the notice. The object of the Act is ‘to promote the safe construction, operation and maintenance of railways’ (s 3). The Act deals with the following matters: the accreditation of operators and the certification of railway employees; safety measures; and enforcement.
2 Section 54 falls into the Part of the Act dealing with safety measures, and belongs to the Division of the Part dealing with the issuance of improvement notices and prohibition notices. The power to issue a prohibition notice is conferred on an authorised officer appointed under s 111 of the Act by the Independent Transport Safety and Reliability Regulator (the Regulator). The office of Regulator is constituted under the Transport Administration Act 1988. Section 54 provides:
- ‘ 54 Prohibition notices
(1) If an authorised officer is of the opinion that at any railway premises there is occurring or is about to occur any activity that involves or will involve an immediate risk to the health or safety of any person, the authorised officer may give to the person who has or may be reasonably presumed to have control over the activity a notice prohibiting the carrying on of the activity until the matters that give or will give rise to the risk are remedied.
(2) A prohibition notice must:
(a) state that the authorised officer is of the opinion referred to in subsection (1), and
(b) state the reasons for that opinion, and
(c) specify the activity in respect of which that opinion is held, and
(d) if in the authorised officer’s opinion the activity involves a contravention or likely contravention of any provision of this Act or the regulations or of a condition or restriction attached to an accreditation – specify that provision, condition or restriction and state the reasons for that opinion, and
(e) include information about obtaining a review of the notice under this Division.
(3) A person who, without reasonable excuse, fails to comply with a requirement imposed by a prohibition notice is guilty of an offence.
Maximum penalty:
(a) in the case of a corporation (being a previous offender) – 1,500 penalty units, or
(b) in the case of a corporation (not being a previous offender) – 1,000 penalty units, or
(c) in the case of an individual not acting in the capacity of an employee (being a previous offender) – 750 penalty units, or
(d) in the case of an individual not acting in the capacity of an employee (not being a previous offender) – 500 penalty units, or
(e) in the case of an individual acting in the capacity of an employee (being a previous offender) – 45 penalty units, or
(f) in the case of an individual acting in the capacity of an employee (not being a previous offender) – 30 penalty units.’
3 The prohibition notice under review was issued on 15 March 2006, in the following terms:
- ‘To: The Proper Officer
Mr Andrew Clinton
Junee Railway Workshop Pty Ltd
Of: Top Office – Railway Roundhouse, Harold St, Junee NSW 2663
1. Definitions:
a. “activity” means the operation and/or movement or [sic] rolling stock to, from and within the railway premises.
b. “railway premises” means the railway premises known as the Junee Railway Workshops in Junee, New South Wales being the premises commencing from the first railway sleeper beyond the points of the crossover connecting the repair sidings and the up shunting neck of Junee South yard across the arrival and departure roads and all track infrastructure from this point into the Junee Railway Workshops including the roundhouse.
2. Pursuant to section 54 of the Rail Safety Act 2002 (NSW) as a result of an inspection of railway premises on Wednesday the 8th of March at 11:20am, the authorised officer is of the opinion that at the railway premises the activity is occurring or is about to occur and this activity involves [or will involve] an immediate risk to the health or safety of any person.
3. The reasons for the opinion are that during the inspection of the railway premises there was a failure to demonstrate adequate systems and procedures are in place to manage the safety risks relating to movement of rolling stock into, out of and within the railway premises.
4. Pursuant to section 54 of the Rail Safety Act 2002, you are required to:
(a) immediately cease the activity or cause the cessation of such activity (whether carried out by Junee Railway Workshops or other rolling stock operators) until the matters that give rise or will give rise to the risk are remedied;
(b) immediately inform the following parties of the prohibition applying in subclause 4(a) of this Notice:
- i. all rolling stock operators conducting railway operations on the railway premises;
ii. the railway operator responsible for the railway which connects with or adjoins the railway premises.
(a) You are directed to conduct a risk analysis to the satisfaction of ITSRR for the purposes of identifying and assessing risks associated with the conduct of the activity on the railway premises the risk analysis is to, without limitation:
- (i) identify all foreseeable hazards that may arise from the conduct of the activity on the railway premises that have the potential to harm the safety of railway employees, contractors and other persons working on the railway premises;
(ii) assess the risk of harm to the safety of railway employees, contactors or other persons working on the railway premises of any hazard so identified.
- (i) ensure the safe operation and movement of all rolling stock to, from and within the railway premises;
(ii) provide information, instructions, training and supervision as may be required to ensure the safe operation and movement of rolling stock to, from, and within the Railway Premises.
(d) You are directed to provide satisfactory evidence to ITSRR to demonstrate compliance with the directions in this notice by 4pm Friday 31 March 2006.
(e) Enquiries in relation to this notice may be directed to the issuing officer on (02) 8263 7100.
Issued this 15 day of March 2006 at 1205pm
[sign here] Kevin Kitchen
Authorised Officer,
Independent Transport Safety and Reliability Regulator
Notice served to: Mr Andrew Clinton.
Copy to: ARTC
Contact Name and Position
Delivered by hand on 15 March 2006’
4 The Tribunal’s power is conferred by s 57 of the Act which provides:
- ‘ 57 Application to Administrative Decisions Tribunal for stay of prohibition notice
(1) A person who applies for a review of a prohibition notice under section 56 may apply to the Administrative Decisions Tribunal for a stay of the notice.
(2) A stay may be granted for the period considered appropriate by the Tribunal, but not so as to extend past the time when notice of the result of the review is given to the applicant by the ITSRR.
(3) A stay may be granted on such conditions as the Tribunal thinks appropriate and may be revoked or amended by the Tribunal.’
- Reasons
5 As was explained in submissions, the power that the Tribunal has cuts in at an earlier stage than is usual in respect to our stay jurisdiction. Normally, we would be considering an application for a stay after an internal review of the original decision has occurred and been completed. But here the scheme allows for someone who is the subject of an adverse original decision to approach the Tribunal directly. The reason for that is clear. The prohibition notice can have a very significant impact on the recipient of the notice. The recipient is given an opportunity to seek to have it stayed at the first opportunity.
6 It is open to the Regulator, I take it, to issue a notice which has some deferral period in it. But maybe to do that in the context of rail safety cuts across the basic concept of a prohibition notice. In the Tribunal we do sometimes see similar notices in other regulatory contexts that do not operate instantly.
7 I raised concern, as did Mr Williams for the applicant, about the adequacy of the notice. It seems to me that it does not have the level of particularity that might be expected in a notice of such serious import. The only experience I have as a member of this Tribunal of similar proceedings involve notices issued in respect of the maintenance of private buses and bus fleets by the Department of Transport. In those cases the Department produces almost a booklet of particulars in support of its intervention, there usually taking the form of a suspension of the accreditation of the bus operator. I would certainly encourage the Regulator to have a more particularised approach to the giving of the notice.
8 It may be that the notice is so defective that the prohibition order is void, but I do not particularly want to get down that track. A challenge of that kind is more suited, I think, to an application to the Supreme Court by way of judicial review; though I believe we are entitled to make findings of that sort if we must: see further, my discussion in Doyle v Commissioner of Police [1999] NSWADT 84 at [19]-[37]. But I do not want to consider that question any further today.
9 I simply want to indicate that I am not satisfied on the basis of the evidence as presented today, that the point has been reached at which there is a strongly arguable case for the issuance of a prohibition notice, i.e. a situation that ‘involves or will involve an immediate risk to the health or safety of any persons’ (s 54(1)).
10 Having said that I accept that what the two officers, both authorised officers, saw on the day was a matter likely to raise significant concern in the mind of an officer. But we have only received as evidence today one officer’s version of events (Mr Hudd). He does not claim to have been the principal officer at the site on the day. (That officer was Mr Kevin Kitchen, who is not here.) Mr Hudd’s evidence is that he could observe, as I understand it, no practical system of warning in respect of the movement of the vehicle on the track. But he was in some doubt as to whether, in the particular circumstances, that movement would have resulted in an actual collision with the rake or the workers.
11 It seems to me, having only the benefit of Mr Hudd’s evidence, that the point may not have been reached at which one might reasonably conclude that there was an ‘immediate risk’ to the health or safety of a person.
12 That said, I do not think the application for a stay of the notice until 31 March 2006 should be granted free of any condition.
13 My main concern, hearing the evidence today, is over your apparent attitude to these matters Mr Clinton (the general manager of the operation, who holds the required accreditation).
14 The picture that was painted today was of a number of recent migrant workers to the country doing the work, apparently with limited language skills. Some of the measures that were suggested by you as sufficient to warn them of movements along the rail seem to me to admit to the criticism that were made by Mr Thompson, the solicitor for the Regulator.
15 I understand from the evidence that they work in a noisy environment, there is all sorts of machinery being used – welders and grinders and so forth. I have some real doubts about the measures of warning that are currently in use. I tend to agree with the submissions of the Regulator, on what I have heard today, that claps and whistles may not be all that effective. I also have the sense today, Mr Clinton, that you do not really see boundary practices [movement of rail trucks from the State line across into the private line of the Workshop] as significant from a signalling viewpoint in your work environment.
16 Now, if the Regulator says that such movements are significant and require special procedures that makes them significant whether you agree or not. You cannot debate some of these things. The Regulator sets the standards in light of what the Parliament lays down. You could possible come to court at some stage and argue that a particular standard is oppressive or unreasonable. But subject to remote possibilities of that kind, these areas of regulation depend upon accredited persons having a working relationship with a regulator which gives confidence to the regulator that they can trust the accredited person. So it is very important that the accredited person take seriously the matters of concern raised by a regulator.
17 I had the impression today, that in some instances, you may not have taken the matters raised on previous inspection visits seriously; and that to some extent this quite draconian step of issuing a prohibition notice may have been influenced by wider factors in the relationship between the parties.
18 So I would encourage you today to maybe rethink some of these matters.
19 The level of regulation around rail safety issues has increased in recent years. We all know the background to that – the major rail passenger disasters. I accept that this is not the rail passenger environment, but nevertheless, the issues here deal with a parallel situation – the safety of workers.
20 I am of the view that the undertakings that you record in para 56 of your affidavit should be attached as conditions to the stay order. The other aspect relates to the expiry date of the stay order. The indication was that the stay should be made operative till 31 March. That is because there are overarching proceedings on foot that have 31 March as their deadline.
21 I should indicate that I do see the matters raised as serious. It is open to the Regulator, obviously, to conduct an inspection at any time.
22 The order today is that the application for a stay is granted, subject to conditions which follow the form of subparas (a) to (i) and para 56 of Mr Clinton’s affidavit and for the sake of certainty that the term ‘movement’ be defined; and that there be an additional clause to the following effect, that the applicant ensure that all operators moving rolling stock, from and within the site and all workers are made aware of and are familiar with these procedures. I give liberty to the parties to file minutes for endorsement, no later than 10am Tuesday.
23 Orders
- 1. Pursuant to section 57 of the Rail Safety Act 2002 (NSW), Prohibition Notice A28114 issued on 15 March 2006 by the Respondent to the Applicant is stayed until 31 March 2006.
2. Order 1 is granted subject to the following undertakings given by the Applicant in relation to all rolling stock movements to, from or within the Applicant’s site at the Junee Roundhouse in Junee, New South Wales (the “Site”), for the period the stay is in force:
(a) prior to each proposed movement to, from or within the Site, a movement plan and risk assessment of the proposed movement shall be conducted by the Applicant’s general manager, Mr Andrew Clinton, the Applicant’s Workshop foreman, Mr Gordon Groves and the individual personnel involved in the proposed movement;
(b) the movement plan and risk assessment in (a) shall be documented and recorded in a register of temporary movements;
(c) the movement plan and risk assessment shall confirm the proposed path of movement is free of any obstacles or interferences;
(d) the risk assessment shall confirm that the points along the proposed path are set in the correct position for the proposed movement;
(e) each of the participants in the proposed movement shall have the authority to call for the immediate cessation of the proposed movement;
(f) the movement shall be conducted in accordance with the movement plan and risk assessment;
(g) if any persons other than Mr Andrew Clinton, Mr Gordon Groves and the individual personnel involved in the proposed movement come within 10 metres of the path of the proposed movement, the movement shall be immediately stopped until the area is clear;
(h) a copy of the risk assessment shall be sent to the Respondent together with a report as to the outcome of the movement;
(i) in addition, in relation to movements in and out of the Site, the Australian Rail Track Corporation is to be given a copy of the movement plan and risk assessment prior to the movement occurring; and
(j) all operators of rolling stock from, to and within the Site and all persons working within the Site are to be made aware of the procedures set out in (a)-(i) above.
3. The reference to rolling stock movements in order 2 above includes any movement occurring wholly within the Site that does not cross the boundary between Australian Rail Track Corporation’s infrastructure and the Site, as well as movements across that boundary.
4. The parties have liberty to apply.
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