Kyle Road Developments 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 ECI 2022 04812

Kyle Road Developments Pty Ltd	Appellant
v
Victorian WorkCover Authority (trading as WorkSafe Victoria)	Respondent

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JUDGE:	Quigley J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 and 20 February 2024
DATE OF JUDGMENT:	14 August 2024
CASE MAY BE CITED AS:	Kyle Road Developments Pty Ltd v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2024] VSC 480

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ADMINISTRATIVE LAW — Leave to appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) — Tribunal decision to vary Improvement Notices served under the Occupational Health and Safety Act2004 — Subsequent application to re‑open Tribunal’s orders refused — Challenge to Tribunal’s orders under s 148 of the VCAT Act.

STATUTORY INTERPRETATION — Correct construction of s 120A of the VCAT Act — Standing to bring application — Determination of who is ‘a person in whose favour’ the order is made — Characterisation of the ‘problem’ with the order to be identified as precondition to exercise power under s 120A — Time for compliance with Tribunal’s orders — Risk of prosecution by reason of competing regulatory regimes alleged — No real prospect of success — Legal unreasonableness — Procedural fairness — Error in construction of s 120A to re‑open an order — Leave to appeal on limited grounds — Appeal dismissed.

PRACTICE AND PROCEDURE — Extension of time to bring appeal under s 148 of the VCAT Act — No adequate explanation as to delay — No merit in the substantive matter — Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D Neal S.C. Mr D Chisholm	Norton Rose Fulbright Australia
For the Respondent	Mr N M Wood S.C. Mr J P Stoller	Victorian WorkCover Authority

HER HONOUR:

INTRODUCTION

This proceeding for leave to appeal is brought pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’) by the appellant, Kyle Road Developments Pty Ltd (‘KRD’), from orders made by the Victorian Civil and Administrative Tribunal (‘the Tribunal’) on 29 July 2021 and 25 October 2022.

KRD is the owner and occupier of the land at 40–65 Kyle Road, Altona North (‘KRD land’) which is the site relevant to the action taken by the respondent, Victorian WorkCover Authority (or ‘WorkSafe’ as it is commonly known), from which this proceeding arises.

The KRD land is part of a larger industrial precinct which is designated for redevelopment. Industrial uses are no longer considered sustainable due to the proximity of surrounding residential uses and the more stringent requirements of the control of pollution from industry. The KRD land was previously used as a bluestone quarry from the late 1930s and then as an abattoir from the 1950s. The abattoir operations ceased in 2003 and after that the former quarry was used as a landfill, receiving solid inert waste. About 20% of the waste deposited in the landfill included asbestos in the form of pipes and concrete sheeting and the like, and thus there is a significant amount of asbestos contaminated soil on the site. The KRD land is designated for use as a mixed density residential development, a local park and a network of roads. A significant number of dwellings are proposed to be developed on the site.[1]
[1]Kyle Road Developments Pty Ltd v Victorian Workcover Authority (Review and Regulation) [2021] VCAT 840 (‘2021 Tribunal decision’) at [4] notes that the plans were for 630 townhouse residences and two multi storey apartment buildings with a total of 144 apartments.

BACKGROUND

WorkSafe issued two Improvement Notices under the Occupational Health and Safety Act 2004 (Vic) (‘OHS Act’) against KRD in respect of the KRD land. KRD sought internal review of the Improvement Notices and, from the second of these reviews, KRD issued proceedings at the Tribunal seeking to set aside or vary the Improvement Notices. The Tribunal heard and determined the application and made orders on 29 July 2021 varying the Improvement Notices as requested by KRD. The Tribunal also extended the time for compliance with the Improvement Notices until 28 July 2022 (the ‘July 2021 Orders’).

The relevant orders were:

2. The respondents internal review unit decision made on 6 November 2019 as to Improvement Notices V01031701208L/111‑01 and V01031701208L/111‑02 is varied to list the means of compliance with the Occupational Health and Safety Act 2004 and Occupational Health and Safety Regulations 2017 as follows:
Compliance may be achieved by the remediation of the site, in so far as it relates to asbestos containing material, in accordance with the Remediation Action Plan dated October 2019 and June 2020 as updated from time to time by AGS Environmental Services and audited by the Environmental Auditor, AAA Environmental.

3. The time for compliance with Order 2 is extended to 28 July 2022.
4. Liberty to apply for consent orders extending Order 3.

On 19 August 2022,[2] KRD sought to extend the time for compliance with the Improvement Notices by consent, as provided for in the July 2021 Orders.[3] WorkSafe refused to consent to the extension of time and KRD made an application to the Tribunal pursuant to s 120A of the VCAT Act to re‑open the July 2021 Orders for the purpose of seeking to extend the time for compliance with Order 3 of those orders.
[2]Kyle Road Developments Pty Ltd v Victorian Workcover Authority (Review and Regulation) [2022] VCAT 1309 (‘2022 Tribunal decision’) at [50].
[3]2021 Tribunal decision, see Order 4 which provided ‘Liberty to apply for consent orders extending Order 3’.

The s 120A application was brought out of time, around 13 months after the July 2021 Orders were made and more than two months after the period specified in Order 3 of the July 2021 Orders had expired.

The Tribunal heard the application on 25 October 2022 and refused the s 120A application on the basis that on the proper construction of s 120A, KRD lacked standing to bring the application as it was not ‘a person in whose favour an order of the Tribunal is made’ (the ‘October 2022 Orders’).

The Tribunal separately considered the extension of time to bring the s 120A application. Rule 4.24A(1) of the Victorian Civil and Administrative Rules 2018 (Vic) (‘VCAT Rules’) provides that an application under s 120A must be made within three months after the order is made or at a later date with leave of the Tribunal. In addition, s 126 of the VCAT Act provides the Tribunal discretion to extend a fixed time limit.

The Tribunal determined that, even if KRD had standing to apply under s 120A, it considered the extension of time and the substantive application lacked merit and would not have made the orders sought by KRD.[4]
[4]2022 Tribunal decision, [190].

Initially when it commenced proceedings in this Court, KRD only sought leave to appeal the October 2022 Orders of the Tribunal.[5] However, it issued a further proceeding[6] pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) which sought to set aside or amend Order 3 of the earlier July 2021 Orders. After some interlocutory intervention, this second proceeding was discontinued and the substance of that second proceeding was incorporated into a proposed amended notice of appeal by the addition of a challenge to the compliance time the Tribunal varied in the Order 3 of July 2021 Orders.[7]
[5]Commenced by Notice of Appeal (filed 22 November 2022 in S ECI 2022 04814, Supreme Court of Victoria) (‘2022 Proceeding’).
[6]Commenced by Originating Motion for Judicial Review (filed 10 November 2023 in S ECI 2023 05280, Supreme Court of Victoria (‘2023 Proceeding’).
[7]2022 Proceeding, Orders of the Honourable Justice Quigley, dated 11 December 2023.

The Notice of Appeal now raises four questions of law. Questions 1, 2 and 3 relate to the October 2022 Orders. Question 4 relates to the July 2021 Orders.

The proceeding is brought pursuant to s 148 of the VCAT Act. In order to bring the appeal under s 148 of the VCAT Act, an application for leave must be made within 28 days of the Tribunal’s orders. Consequently, any challenges to the July 2021 Orders to be added to this appeal proceeding require an extension of time.[8] The Court may grant an application for leave to appeal only if it is satisfied that the appeal has a real prospect of success.
[8]2022 Proceeding, Further Further Further Amended Notice of Appeal, filed 22 December 2023.

SUMMARY OF THIS APPEAL

For determination in this proceeding are:

(a) whether an extension of time should be granted to bring an application for leave to appeal pursuant to s 148 of the VCAT Act in respect of the July 2021 Orders;

(b) if an extension of time is granted, whether to grant leave to appeal both of the July 2021 Orders and the October 2022 Orders;

(c) if leave to appeal is granted, determination of the appeals; and

(d) the consequential appropriate form of orders.

The underlying issue which appears to have motivated KRD in bringing this proceeding is the alleged effect of the inconsistency between the timing compliance requirement of the WorkSafe Improvement Notices and the Environment Protection Authority’s (‘EPA’) remediation requirements.[9] The course taken by KRD to seek to re‑open the Tribunal’s July 2021 Orders pursuant to s 120A of the VCAT Act was premised on the alleged implications of a perceived inconsistency between the two regimes which applied to the site, the Occupational Health and Safety (‘OHS’) legislative regime and the environmental legislation over which the EPA was the regulator.
[9]The EPA by way of a Clean Up Notice required the preparation and approval of a Clean Up Plan and Remediation Action Plan.

For the reasons which follow, I am not satisfied that the delay in seeking to challenge the July 2021 Orders is justifiable. No good reason for the delay or appropriate explanation has been provided to the Court. Further, I am not satisfied there is a question of law which is of sufficient weight to sustain an exercise of discretion given this otherwise unjustifiable delay. The proposed question of law and grounds challenging the July 2021 Orders are based on an allegation of breach of procedural fairness. For the reasons which follow, I have concluded Question 4 has no real prospect of success.

Questions 1, 2 and 3 challenge the October 2022 Orders. Questions 1 and 2 are based on the correct construction of s 120A. The alleged error of law challenges the Tribunal’s determination that KRD was not a person who had standing to bring an application to re‑open the Tribunal’s orders pursuant to s 120A, because KRD was not ‘a person in whose favour an order of the Tribunal’ had been made. The second part to the construction question is the identification of a problem with ’enforcing or complying with the order’.

In my view, the Tribunal’s construction of the first part of s 120A and its application here to conclude that KRD was not ‘a person in whose favour the Tribunal’s order was made’ in these circumstances is too narrow.[10] However, whilst I disagree with this part of the Tribunal’s determination, I consider the second part of the construction question was not in error; that being the meaning of whether there was ‘a problem with enforcing or complying’ with the order.[11] Consequently, the error in part of the construction of s 120A is insufficient to amount to a vitiating error.
[10]2022 Tribunal decision, [122]–[128].
[11]2022 Tribunal decision, [70]–[73], [125]–[130].

Consequently, whilst I would allow leave to appeal in respect of the October 2022 Orders in respect of Questions 1 and 2, for the reasons which follow, I would dismiss the appeal.

KRD also sought to overturn the Tribunal’s exercise of discretion to refuse to extend time to bring the s 120A application. In respect of Question 3 which raised the legal reasonableness of the Tribunal’s refusal to extend time to bring the s 120A application, I am of the view that it has no prospect of success and I would refuse leave to appeal. I have found no error in the Tribunal’s consideration of the application to extend time.

To provide context and to avoid an extent of repetition of the submissions put before this Court with those put below, I have set out a summary of the parties’ submissions before the Tribunal and the Tribunal’s considerations of them which led to the July 2021 Orders and the October 2022 Orders.

THE 2021 TRIBUNAL ORDERS

On 2 July 2020, KRD made an application to the Tribunal for review of WorkSafe’s internal review decisions.[12] KRD sought orders that the internal review decisions be varied so that the compliance method for remediation of the site, insofar as it related to asbestos, be undertaken in accordance with a Remediation Action Plan[13] dated October 2019 and June 2020 as updated from time to time. In broad terms, that Remediation Action Plan provided for the removal of visible asbestos in some areas and, in others, burial and specified means of covering.[14]
[12]The Internal Review decisions were made on 6 November 2019 as to Improvement Notices V01031701208L111‑01 and V01031701208L111‑02.
[13]The Remediation Action Plan is a part of the environmental audit process governed by the environmental legislation, as opposed to the applicable OHS legislation.
[14]2021 Tribunal decision, [14].

WorkSafe proposed that the WorkSafe Improvement Notices be set aside in their entirety as issues of current concern would be appropriately dealt with by the Environment Protection Act 2017 (Vic) (‘EP Act’) processes which were underway, or that certain areas of asbestos affected soil be dealt with consistently with the Improvement Notices.[15]
[15]WorkSafe had previously informed KRD that it intended to withdraw the Improvement Notices but KRD maintained its application for review of the internal review decision. This sequence of events is discussed at [18] in the 2021 Tribunal decision.

The Tribunal noted that it was implicit in the proposed orders sought by KRD that there was a proper basis for the issuing of the Improvement Notices and that the remediation of the site was required to meet its OHS Act obligations, in particular, reg 231 of the Occupational Health and Safety Regulations 2017 (‘OHS Regulations’).[16] Regulation 231 prescribes that a person who manages or controls the workplace must, so far as is reasonably practicable, eliminate any risk associated with the presence of asbestos. The Tribunal said that the consequence was that the question in the proceeding is the means by which KRD is to meet its OHS Act and Regulations duties.[17]
[16]2021 Tribunal decision, [15].
[17]2021 Tribunal decision, [16].

The Tribunal said its primary task in this proceeding was to consider the measures proposed by the parties to manage the risk posed by the asbestos on the site and decide which measures reduce the risk so far as is reasonably practicable, consistent with the OHS Act. WorkSafe no longer took issue with KRD’s proposal as to large areas of the site so the dispute concerned only one area (referred to as Domain 4).

The Tribunal set out a summary of the EPA processes relevant to the proceeding,[18] and concluded that the 2020 Remediation Action Plan was intended to address the OHS Act issues and was a key component of the overall environment audit required under the EP Act. That process would not be complete until relevant approvals were given, and it was likely that the Environmental Assessment Report and the 2020 Remediation Action Plan will be updated over time to address concerns from the environmental auditor. The Tribunal also stated that it understood that, separate from this proceeding, KRD would be required to satisfy the EPA that the Amended Clean Up Notice has been complied with together with any other EP Act requirements. The Tribunal noted that, for present purposes, it appeared that the EPA’s concerns about Domains 1, 2 and 3 had been satisfied. The EPA appeared to have moved away from requiring the Domain 4 materials to be removed and disposed of, with abatement of the asbestos material being acceptable prior to off‑site disposal and now requires abatement of the material prior to its use as fill.[19]
[18]2021 Tribunal decision, [71–[91].
[19]2021 Tribunal decision, [92]–[95].

By the end of the hearing, the dispute was, whether in regard to Domain 4, KRD would comply with the OHS Act and Regulations through its proposal (encapsulation without prior abatement) or through WorkSafe’s proposal (encapsulation with prior abatement or, if not reasonably practicable, removal). KRD’s experts were not challenged and the Tribunal accepted their evidence and opinions as to the range of matters going to the reasonable practicability of removal of all asbestos.

The Tribunal went on to state that it would not make an absolute finding that the OHS Act obligations will be met if the EP Act requirements are met and so, in effect, the problem should be left to the EPA. The two regulatory regimes have different foci and, although the safety and well‑being of all people associated with the site are paramount, the Improvement Notices in issue before the Tribunal focus on risk to workers and how the relevant work can be done safely.[20]
[20]2021 Tribunal decision, [160].

The Tribunal concluded it was appropriate that this proceeding be brought to a conclusion by the making of a positive decision rather than merely by setting aside the internal review unit decision and/or the Improvement Notices. The Tribunal noted the latter course might incorrectly suggest that the site is currently safe for workers or that the Tribunal has found no cause for concern about how the asbestos is to be managed.[21]
[21]2021 Tribunal decision, [161].

The Tribunal handed down its reasons on 29 July 2021, ordering the Improvement Notices be varied in the terms sought by KRD and extending the time for compliance to 28 July 2022 (as above, the July 2021 Orders). Finally, the Tribunal said:

163 As the 2020 RAP [Remediation Action Plan] will be open to amendment and update, I am satisfied the orders sought by KRD will both provide certainty about the status of the Notices and will appropriately align with the environmental audit process required under the EP Acts. It seems to me that outcome will ensure compliance in a way which is practical and has appropriate regard to parallel and relevant processes.
164 KRD’s proposed order did not specify a date for compliance. The Notices provided for a period of just under 13 months for compliance and the IRU [Internal Review Unit] Decision allowed a further period of just over eight months, I have specified a compliance dated being 12 months from the date of my orders. I have granted liberty to apply in the event the parties by consent agree to an extension of that date.
[Tribunal emphasis]

THE 2022 TRIBUNAL DECISION

On 19 August 2022, after the expiry of the time for compliance with the July 2021 Orders, KRD contacted WorkSafe to advise that it had not been able to comply with the Tribunal’s July 2021 Orders as the EPA processes in relation to the same subject matter remained on foot and it sought an extension of time by consent.

On 2 September 2022, WorkSafe wrote to KRD rejecting the request for consent to an extension of the compliance date.

On 8 September 2022, KRD wrote to the Tribunal seeking an urgent directions hearing at which an application would be made for an extension of time for the compliance with Order 2 of the July 2021 Orders or, in the alternative, an application would be made under s 120A of the VCAT Act.

The Tribunal listed the matter for hearing on 25 October 2022. The application was opposed by WorkSafe.

KRD’s Submissions

Before the Tribunal, KRD had submitted that Order 2 was made in its favour as it replicated the terms of the order it had sought. KRD relied on the Tribunal’s analysis and finding that the means of compliance with the Improvement Notices, as proposed by KRD, was appropriate. This was said to be so because the Tribunal had decided that it was preferable for a positive decision to be made and was satisfied that the order proposed by KRD ought to be made in respect of all four Domains (with a slight clarification as to the audit elements of the 2020 RAP).[22]
[22]2022 Tribunal decision, [63].

KRD argued that all of those matters, in particular the comments in paragraphs 161 to 163, demonstrated that the final Order 2 was an order ‘made in its favour’. KRD also placed emphasis on the word ‘compliance’ in s 120A of the VCAT Act as indicating its purpose was wider than enforcement only. KRD accepted that s 120A is not intended to enable an appeal of the Tribunal’s original decision, but rather allows the Tribunal to vary or revoke an order to make another order in circumstances where the Tribunal is satisfied that there are ‘problems’ with enforcing or complying with the original order. That submission was made referring to the relevant Explanatory Memorandum.[23]
[23]2022 Tribunal decision; see footnote 17; Clause 67, Explanatory Memorandum, Justice Legislation Amendment (Access to Justice) Bill 2018 (Vic) (‘the Amending Act’) dated 27 March 2018.

KRD also submitted to the Tribunal that in recent decisions the Tribunal had made observations about s 120A that:

(a) the provision preserves the supervisory jurisdiction of the Tribunal to intervene where there is a problem with enforcement or compliance with an order; Link and Connect Pty Ltd v Seng[24] (‘Link and Connect’);

(b) the provision is directed at remedying a practical problem with compliance or enforcement of the order;[25] and

(c) the order will not be disturbed merely because it is inconvenient or burdensome.[26]

[24](Building and Property) (No. 3) [2021] VCAT 1042, [55] (‘Link and Connect’).

[25]Link and Connect, [57].

[26]Link and Connect, [58].

WorkSafe’s Submissions

WorkSafe submitted to the Tribunal that, in the ordinary course, an administrative decision once made is final and cannot be revisited by the decision‑maker even if circumstances subsequently change.[27] It submitted that the intention of s 120A is to enable an order to be re‑opened for a limited purpose, being the enforcing of the order. This is reinforced by the heading of s 120A. WorkSafe referred to the provisions surrounding that section, relevantly s 121, which sets out how a person in whose favour a monetary order is made may enforce that order; and s 122, which establishes how a non‑monetary order may be enforced by a person in whose favour that order was made. WorkSafe submitted that these sections were amended at the same time as the insertion of s 120A to ensure consistency of language across the three provisions.
[27]Minister for Immigration and Multicultural Affairs v Thiagarajah (2000) 199 CLR 343 [30]; Chang v Legal Profession Complaints Committee [No 2] [2020] WASCA 208, [221]–[237]. Also refer to Kabourakis v Medical Practitioners Board of Victoria [2006] VSCA 301, [48].

In order to determine in whose favour an order was made in respect of the specific provisions in the OHS Act, WorkSafe submitted to the Tribunal that in order to have varied the Improvement Notices, the Tribunal must have concluded that under s 111(1) of the OHS Act, KRD was contravening a provision of the OHS Act or Regulations (this was addressed in paragraph 15 of the July 2021 Tribunal decision). As a consequence of s 111(2)(c) of the OHS Act, an Improvement Notice must specify a date by which the person is required to remedy the contravention that the inspector (and the Tribunal on review) considers is reasonable, having regard to the severity of the risk to the health or safety of any person and the nature of the contravention or likely contravention. 28 July 2022 was an appropriate time to fix for compliance with the Improvement Notices, preserving liberty to apply for an extension by consent.

WorkSafe contended that the proper way to characterise Order 2 was as one which imposed obligations on KRD. In the event of non‑compliance with the varied Improvement Notices by KRD, WorkSafe could take further action to enforce compliance.[28] Further, WorkSafe could seek compliance with the Tribunal’s orders in the Supreme Court under s 122 of the VCAT Act. It would be nonsensical to refer to KRD as a person in whose favour the orders were made for the purposes of s 122 of the VCAT Act as it could not seek to enforce orders in the Supreme Court which required it to rectify its own contravention of the OHS Act. As a matter of construction, it was submitted that a consistent meaning should ordinarily be given to a particular term wherever it appears in a suite of statutory provisions.[29]
[28]This further action could include issuing a further improvement notice, commencing a prosecution, applying for an injunction to compel compliance or take no further action in its discretion.
[29]Tabcorp Holdings Ltd (ACN 063 780 709) v Victoria (2016) 328 ALR [65] (‘Tabcorp’).

WorkSafe submitted there was no inherent problem with Order 3 of the July 2021 Orders and contended that KRD had not identified an inherent problem with Order 3 or identified how the order was unworkable. The appurtenant problem identified by KRD was the scheme for remediation it proposed itself, rather than a problem with the Order. In particular, it appeared the problem was the timeframe within which remediation might occur. The sole basis for the purported problem appeared to be the involvement of the EPA which was a fact which had been known to the parties since the commencement of its involvement at the site and which was well known at the time of the review hearing.

WorkSafe contended that it was critical to note that the time for compliance is not something separate from the substantive decision made by the Tribunal and is indeed an essential part of any decision to issue an improvement notice.

WorkSafe argued that, having exercised its right to review via the internal review decisions process (which included the time for compliance), the Tribunal’s decision was final, subject to being disturbed following an application for leave to appeal on a question of law under s 148 of the VCAT Act or being varied by the operation of the Tribunal’s own orders as provision was made for those orders to be varied by consent.

The Tribunal was referred to a number of cases which have considered s 120A including Link and Connect, Zhang v Owners Corporation RP4292[30] (‘Zhang’), T Vukasovic v G Saric[31] (‘Vukasovic’), and Oliver v Bassari (Costs).[32]
[30][2020] VCAT 1352; discussed in 2022 Tribunal decision, [95]–[101].
[31][2021] VCAT 1071 [22] (‘Vukasovic’); discussed in 2022 Tribunal decision, [102]–[110].
[32][2022] VCAT 1005 [63] (‘Oliver’); discussed in 2022 Tribunal decision, [111]–[112].

These submissions by the respective parties as to the construction and application of s 120A were reiterated before me in the appeal.

Tribunal’s Consideration

Construction of s 120A

In its written reasons the Tribunal summarised the background to the substantive proceeding and the pertinent parts of the July 2021 Orders.[33]
[33]2022 Tribunal decision, [9]–[30].

The Tribunal reasoned that the question of whether KRD has standing to make a s 120A application depends on the characterisation of Order 2 of the July 2021 Orders and how they came to be made. The Tribunal set out its relevant findings as to the non‑compliance with the OHS Act and Regulations,[34] referred to the part of the 2021 Tribunal decision where it described the relationship between the OHS Act and the relevant EP Act processes, its finding that the proposed method did not amount to re‑use, and its consideration and conclusion that KRD would comply with the OHS Act and Regulations through its proposal of encapsulation without prior abatement as opposed to the WorkSafe proposal.[35]
[34]2022 Tribunal decision, [36].
[35] 2022 Tribunal decision, [37]–[43].

As to the form of Order 2, the Tribunal restated paragraphs 163 and 164 (set out above at [30]) before turning to KRD’s s 120A application.

The Tribunal rejected KRD’s submissions and adopted the approach proffered by WorkSafe on the characterisation of in whose favour the order was made. In considering the parties’ submissions, it was noted that in the decisions of Zhang and Vukasovic the Tribunal decided to exercise its power to make orders under s 120A in the context of an application by a party capable of seeking enforcement under ss 121 or 122. The Tribunal said it was also clear that, when considering whether to make an order under s 120A:

the Tribunal’s focus was on whether there was an internal problem with the terms of the order itself, rather than a problem with compliance with the order by the party required to act by way of making payment or taking a step. In Zhang, the original form of the order could not be complied with because of the practical problem of the Owners Corporation securing the consent of an unrelated third party. In Vukasovic there was no practical problem with the respondent moving out of the property – he just did not want to. In Link and Connect the relevant problem was with the tenant paying the amount due by the specified date in the order rather than the fact the order required payment of specified arrears.[36]

[36]2022 Tribunal decision, [115].

The Tribunal considered that KRD was more like a tenant in Link and Connect who said a change should be made because they have not complied with a deadline contained in the relevant order. It was not the order that had caused the problem but their inaction, and so the tenant had no standing to make an application under s 120A of the VCAT Act.[37]
[37]2022 Tribunal decision, [126].

The Tribunal noted a distinction between the Tribunal’s original and review jurisdiction. In the Tribunal’s review jurisdiction, the Tribunal’s role is to make the correct or preferable decision standing in the shoes of the original decision‑maker. This means outcomes are often different from inter partes disputes where an order might be made for money to be paid or directions taken to remedy a breach.

The Tribunal acknowledged there are some decisions in the review jurisdiction that can be described as being in favour of one party or another, such as KRD under the Freedom of Information Act 1982 (Vic) receiving a favourable decision requiring an agency to release documents it had previously claimed were exempt, a health practitioner may persuade the Tribunal that a suspension of their registration was not necessary to protect public health and safety under the Health Practitioner Regulation National Law (Victoria) Act 2009, or a dog owner may provide sufficient evidence to convince the Tribunal to set aside a dangerous dog declaration made under the Domestic Animals Act 1994 (Vic). However, the Tribunal did not consider KRD’s circumstances to be comparable to any of those examples.[38]
[38]2022 Tribunal decision, [116]–[118].

The Tribunal concluded that the July 2021 Orders could not be properly described as being in KRD’s favour. Having decided not to set aside the WorkSafe Improvement Notices, the question was whether the manner of compliance was to be varied so as to ensure that KRD remedied its breaches.[39] The Tribunal also accepted the proposition that the time for compliance with the Improvement Notices was a critical part of the obligations imposed on KRD by Order 2.
[39]2022 Tribunal decision, [120].

The Tribunal accepted that the phrase ‘a person in whose favour an order is made’ ought to be given the same meaning in ss 120A, 121 and 122 of the VCAT Act. Giving attention to the heading of s 120A and its close connections with ss 121 and 122 show that they are all directed to the party who may enforce the order if required. This was entirely consistent with the remarks made in the Explanatory Memorandum that s 120A provides a means for a person who may enforce an order to seek the Tribunal’s intervention to resolve unintended problems with the workability of an order, and so assist in ensuring that a failure of compliance may be acted on through ss 121 or 122 of the VCAT Act.[40]
[40]2022 Tribunal decision, [122]–[123].

The Tribunal said that the wording adopted by it as to the means of compliance with the WorkSafe Improvement Notices proposed by KRD did not convert either Order 2 or Order 3 into orders in its (KRD’s) favour. The effect of those orders still required KRD to remedy the breach of the OHS Act obligations within a specified time. Accordingly, the Tribunal found KRD did not have standing to apply for an order extending the time of the compliance with Order 2 as specified in Order 3 of the July 2021 Orders.

Extension of Time

KRD’s Submissions

KRD submitted that Order 3 plainly contemplated that the underlying issues may not be resolved within 12 months. KRD drew attention to paragraph 164 of the 2021 Tribunal decision and confirmed that, as KRD had not specified a date for compliance with its application, the Tribunal simply replicated that contained in the Improvement Notices with an option for an extension by consent. As no submissions as to time for compliance had been made at the substantive hearing, the Tribunal had no basis to know whether or not the time allowed would be adequate.[41]
[41]2022 Tribunal decision, [139].

KRD’s submissions relied on the ongoing status of its negotiations with the EPA and that it was unfortunate that the time set for compliance with the orders was insufficient. KRD claimed the underlying issue delaying compliance was not caused by it, referring to the EPA processes, that it was not feasible for it to make an application at an earlier date while the negotiations with the EPA remained extant, and that WorkSafe would not suffer any prejudice if the application were granted, the substantive issue of the hearing being the method by which the site was to be remediated and not the timeframe in which that remediation was to occur.

WorkSafe’s Submissions

WorkSafe submitted that KRD had not provided any (acceptable or otherwise) explanation for its delay and had no evidence to explain why it did not make its application within the prescribed time.

WorkSafe drew attention to Ms Milionis’s affidavit which referred to her contact with WorkSafe in August 2021 (11 days after the July 2021 Orders were made), to the effect that the EPA processes may not be finalised in a timeframe which would allow the works in compliance with the Improvement Notices to be completed within 12 months. Whilst WorkSafe did not respond, it appeared there was no follow‑up and no application was made under the liberty to apply Order 4 or under s 120A made to the Tribunal in or around August 2021.

As to prejudice, WorkSafe argued that KRD’s delay in bringing the s 120A application so far out of time and after the time for compliance had passed would directly impact on its ability to perform its statutory functions, including its functions of monitoring and enforcing compliance. The Tribunal should be extremely reluctant to set a dangerous precedent.[42] WorkSafe contended it was entitled to assume (the appeal period having expired) that the Tribunal’s orders were final and would be complied with.
[42]2022 Tribunal decision, [152].

Reference was made to Young v Environment Protection Authority[43] on the question of considerations of fairness as between KRD and other persons in like positions. In that decision, the Tribunal commented on the purpose of time limits for the commencement of proceedings, commenting that to ignore time limits would degenerate certainty in the system and create an expectation in others that they too may ignore time limits with impunity.
[43][2009] VCAT 564, [26]–[29] per DP Gibson.

WorkSafe submitted the substantive application was of little or no merit based on the question of standing and the evidence relied upon by KRD.

Tribunal’s Consideration of extension of time to bring the s 120A application

Having considered the standing of KRD to bring the s 120A application, the Tribunal noted that the application was made more than two months after the period specified in Order 3 of the July 2021 Orders had expired, and after WorkSafe had declined to consent to an extension. The time for making an application under s 120A was three months from the time the Orders were made, whereas this application was made 13 months after the July 2021 Orders. KRD sought an additional time for compliance of 36 months.

The Tribunal set out the material which was relied upon by KRD as to the chronology of events which led to the appreciation that the date for compliance with the July 2021 Orders had been 28 July 2022.[44]
[44]2022 Tribunal decision, [49]–[58].

The Tribunal then considered whether it would have granted an extension of time to bring the s 120A application in accordance with r 4.24A(1) of the VCAT Rules. Rule 4.24A(1) provides that an application for review of an order under s 120A must be made within three months after the order is made or a later date with leave of the Tribunal.

In addition, s 126 of the VCAT Act gives the Tribunal the discretion to extend time. The Tribunal may extend or waive compliance even if the time period for compliance has expired for an application for extension of waiver was made. The Tribunal may not extend (or abridge or waive compliance) if to do so would cause prejudice or detriment to a party or potential party that cannot be remedied by an appropriate order for costs or damages.

The parties agreed that the applicable considerations for an extension of time application under s 126 of the VCAT Act were those discussed in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (‘Hunter Valley’),[45] being an acceptable explanation for the delay, whether it was fair and equitable in the circumstances to extend time, KRD’s actions since the decision, prejudice to the respondent, unsettling of established practices, merits of the substantive application, and fairness as between KRD and others in a like situation.
[45](1994) 3 FCR 344.

In determining that the extension of time and substantive application lacked merit,[46] the Tribunal made the following observations:
[46]2022 Tribunal decision, [190].

(a) The evidence relied on for the extension of time did not explain why KRD could not have commenced work while continuing to negotiate with the EPA at least in respect of Domain 1.[47]
[47]2022 Tribunal decision, [167].

(b) No satisfactory evidence by witness statement or affidavit explained why the s 120A application had not be made until some 13 months after the July 2021 Orders were made.[48]
[48]2022 Tribunal decision, [168].

(c) There was no explanation as to what occurred to cause Ms Milionis to write to WorkSafe in August 2021 to foreshadow the possibility of non‑compliance.[49]
[49]2022 Tribunal decision, [169].

(d) There was no evidence about the pilot trial and how it was relevant to the 2020 Remediation Action Plan referred to in Order 2 or how it related to compliance with the July 2021 Orders.[50]
[50]2022 Tribunal decision, [170].

(e) KRD did not adduce evidence as opposed to assertion that there could be no compliance with any aspect of the varied Improvement Notices until all matters were resolved with the EPA.[51]
[51]2022 Tribunal decision, [171].

(f) Given that KRD relied on the unresolved dispute as to Domain 4 with the EPA, KRD’s departure from its earlier position that the EPA processes were irrelevant was remarkable.[52]

(g) There was no evidence before the Tribunal explaining the practical mechanics of the processes to be undertaken for Domains 1, 2 and 3, the time which would be required for the works to be completed.[53]

(h) The evidence pointed to an ongoing dispute with the EPA covering the same ground as was in issue in the lead up to the 2021 substantive hearing. The material KRD relied on for the s 120A application did not allow any analysis to be made as to what further suitable period of time might be required.[54]

[52]2022 Tribunal decision, [174]–[176].

[53]2022 Tribunal decision, [178].

[54]2022 Tribunal decision, [179].

The Tribunal was not prepared to provide additional time on the basis that this would obviate the need for the parties to return to the Tribunal and seek to have the orders re‑opened again for a further extension. The Tribunal took the view that the suggestion was inconsistent with the desirability of finality in litigation, particularly where one party has a statutory duty to monitor and if necessary enforce compliance with Tribunal orders. In allowing a specified timeframe to be effectively ignored, a rolling set of timeframes would mean that KRD’s breaches, which concerned safety of workers and others coming onto the site, would mean the OHS Act considerations would remain for an indefinite period. This might suggest that compliance with the Tribunal’s orders was optional.[55] Time for compliance is an essential component of the OHS Act notices regime and WorkSafe would be prejudiced if there was a lack of certainty about compliance by KRD.[56]
[55]2022 Tribunal decision, [180]–[182].
[56]2022 Tribunal decision, [183].

The application for extension of time was found not to be supported by direct or cogent evidence as to why KRD delayed making the s 120A application on all the basis upon which it claimed the 13 month delay was acceptable. Further, a lack of substantive evidence was before the Tribunal as to the basis for the orders sought in the s 120A application on which the Tribunal concluded it lacked merit.

QUESTIONS OF LAW

Four questions of law are raised in the Notice of Appeal. The first three arise from the October 2022 Orders and the fourth relates to the July 2021 Orders:

·Question 1 — Did the Tribunal err by finding KRD was not a ‘person in whose favour an order of the Tribunal was made’ under s 120A of the VCAT Act?
·Question 2 — Did the Tribunal misconstrue s 120A of the VCAT Act in finding KRD was not entitled to rely upon the section in circumstances where it had a problem in complying with an order?
·Question 3 — Was the Tribunal’s holding that it would have refused an order to extend the time for compliance, even if KRD had otherwise complied with s 120A, legally unreasonable?
·Question 4 — Did the Tribunal err at law when it varied the time for compliance with the notices in the 29 July 2021 Order?

QUESTION 1 — Was KRD ‘a person in whose favour an order of the Tribunal was made’?

Section 120A of the VCAT Act confers a right on a person in whose favour an order is made to apply to the Tribunal for a review of the order to remedy a problem with enforcing or complying with the order.

Section 120A provides:

Re‑opening an order for enforcement reasons
(1)A person in whose favour an order of the Tribunal is made may apply to the Tribunal for review of the order to remedy a problem with enforcing or complying with the order.
(2)An application under subsection (1) is to be made in accordance with, and within the time limits specified by, the rules.
(3)The rules may limit the number of times a person may apply under this section in respect of the same matter without obtaining the leave of the Tribunal.
(4)The Tribunal may vary the order, or revoke the order and make any other order that the Tribunal could have made in the proceeding in which the order was made, if the Tribunal is satisfied that—
(a)there are problems with enforcing or complying with the order; and
(b)having regard to those problems, it is appropriate to vary the order, or revoke the order and make another order (as the case requires).

KRD’s Submissions

As KRD argued before the Tribunal,[57] KRD characterised the July 2021 Orders as made in KRD’s favour. This was said to be because, at the July 2021 review hearing, KRD sought to vary the Improvement Notices to include the means of compliance identified in its application: that is, the site be remediated in accordance with its Remediation Action Plan.[58] WorkSafe opposed the variation on the basis it, inter alia, amounted to re‑use of the asbestos and offended the Regulations.[59] The Tribunal rejected WorkSafe’s submission and found that, in circumstances where there was no challenge to KRD’s expert reports, its proposed orders were appropriate,[60] and accordingly made the July 2021 Orders which reflected the variation sought by KRD.[61]
[57]Summarised in KRD’s submissions to the Tribunal in the 2022 Tribunal decision at [60]–[66].
[58]2021 Tribunal decision, [14].
[59]2021 Tribunal decision, [41].
[60]2021 Tribunal decision, [162].
[61]2022 Tribunal decision, [31].

KRD submitted the Tribunal erred in its finding on standing for three reasons.

First, the Tribunal incorrectly stated that the orders were made on the basis that there was no dispute that KRD was in breach of its obligations under the OHS Act.[62] KRD did not make such concession nor, as the Tribunal observed,[63] did WorkSafe ever charge KRD with a breach of the OHS Act or Regulations.
[62]2022 Tribunal decision, [120].
[63]2021 Tribunal decision, [131]–[132].

Secondly, the substantive issue in dispute was prospective: there was no breach. The issue was what future measure(s) would reduce the risk posed by the disturbance of asbestos on site, so far as was reasonably practicable. The dispute was not about the origin or existence of a risk. It concerned the future remediation of the asbestos on the site. As the duty holder, KRD’s obligation was to ensure that the future remediation works on site were performed in a manner that was as safe as reasonably practicable. To that end, KRD sought to vary the Notices to reflect the measures recommended by its experts: namely, the asbestos be buried and contained on site. The expert opinions were unchallenged, and accepted by the Tribunal.[64] Conversely, WorkSafe had sought to have the asbestos removed from the site, or alternatively have the Improvement Notices cancelled as the EPA were dealing with the asbestos contamination at the site.[65]
[64]2021 Tribunal decision, [38], [145]–[148].
[65]2021 Tribunal decision, [151]–[154].

In respect to the substantive issue, the Tribunal had agreed with KRD. The measure that would reduce the risk to persons, so far as was reasonably practicable, was the measure KRD proposed.

Finally, the Tribunal appears to have reasoned that, because the Improvement Notices were not cancelled, the order must be made in WorkSafe’s favour.[66] For the reasons already advanced, the July 2021 Orders were made in favour of KRD and against the orders sought by WorkSafe as demonstrated by the Tribunal’s reasons in the substantive hearing.[67]
[66]2022 Tribunal decision, [120]–[121].
[67]2022 Tribunal decision, [42]–[45].

WorkSafe’s Submissions

WorkSafe argued that, having regard to the legal principles and the submissions of the parties, the Tribunal was correct to approach this matter by asking whether KRD had standing to make the s 120A application.

If the July 2021 Orders were not made in KRD’s favour, or if there was not a problem with complying with those orders within the meaning of s 120A(1), then KRD had no right to bring the s 120A application. WorkSafe maintained the Tribunal’s conclusions on each question were correct.

In respect of the proper construction of s 120A, WorkSafe argued that s 120A provides a limited exception to the finality principle that, once an administrative decision is final, it cannot be revisited by the decision‑maker even if circumstances subsequently change.[68]
[68]See, for example, Minster for Immigration and Multicultural Affairs v Thiyagarajah (2000) 199 CLR 343, [30], Chang v Legal Profession Complaints Committee [No 2] (2020) 56 WAR 263, [221]–[237].

Section 120A was inserted into the VCAT Act on commencement of the Justice Legislation Amendment (Access to Justice) Act 2018 (Vic) (‘the Amending Act’). As a provision made after 1 January 2001, the heading (Re‑opening an order for enforcement reasons) forms part of the VCAT Act.[69] The heading to s 120A is an important part of the context within which the provision must be interpreted. It makes clear that the intention of s 120A is to enable an order to be re‑opened for limited purposes — that is, for the purposes of enforcing the order.
[69]Interpretation of Legislation Act 1984 (Vic), s 36(2A).

The fact that s 120A(1) provides that an application may be made for review of the order ‘to remedy a problem with enforcing or complying with the order’ (emphasis added) does not detract from this. The clear purpose of the provision is to confer jurisdiction on the Tribunal to re‑open a matter to enable the order to be enforced, whether the problem with the order is a problem with enforcing the order or a problem with complying with it. The provision has previously been interpreted by the Tribunal consistently with this purpose.[70]
[70]See, for example, Link and Connect, [55]; Oliver, [63]; Vukasovic, [22].

That s 120A is directed to re‑opening an order only for enforcement purposes is also clear from the express words of s 120A(1), which provide that it is a person ‘in whose favour’ an order is made who may apply to the Tribunal for review of the order (s 120A(1)). The use of the phrase ‘in whose favour’ in s 120A is a clear indication that the provision is only intended to apply in respect of a person who can seek to enforce the relevant order. The legislature has plainly made a conscious choice to use this phrase, directed as it is to the party who can enforce an order, rather than (as in s 115C) adopting the formulation already in the VCAT Act at the time of s 120A’s insertion, such as ‘a party who has substantially succeeded against another party in a proceeding’.

The purpose of this limitation is explained in the Explanatory Memorandum for the Bill that became the Amendment Act as follows (emphasis added):

New section 120A(1) enables only a person in whose favour an order is made to apply for review of the order. This limitation is [sic] reflects that applications under section 120A should be seeking to effectively enforce an order, rather than being a form of appeal or review against an order.

To similar effect, the Explanatory Memorandum also states:

The new section 120A is not intended to enable an appeal of the Tribunal’s original decision, but rather, it allows the Tribunal to vary or revoke an order, or make another order, in circumstances where the Tribunal is satisfied that there are problems with enforcing or complying with the original order.

WorkSafe argued that s 120A also needs to be construed in the context of the VCAT Act as a whole. It is contained within Division 9 of Part 4 of the VCAT Act, a division titled ‘Orders’. Division 9 includes three provisions (ss 120A, 121, and 122) that permit an application by the person in whose favour an order was made. Sections 121 and 122 were amended at the time s 120A was inserted into the VCAT Act to ensure consistency of language across the provisions.

Sections 121 and 122 provide for enforcement in the appropriate court of monetary and non‑monetary orders respectively, by a ‘person in whose favour’ an order was made.[71] As a matter of construction, a ‘consistent meaning should ordinarily be given to a particular term wherever it appears in a suite of statutory provisions’.[72] Here, the phrase ‘in whose favour’ should be read consistently across ss 120A, 121, and 122. It follows from the foregoing that:

(a) the only party to a proceeding entitled to bring an application for variation of an order under s 120A of the VCAT Act is the party in whose favour the initial orders were made; and

(b) that the party who is entitled to enforce those orders is the party in whose favour they were made.

[71]Section 122(1) provides ‘A person in whose favour a non‑monetary order is made may enforce the order in the Supreme Court’.

[72]Tabcorp, [65]. See also, e.g., Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Moorcroft (2021) 273 CLR 21, [25] per Kiefel CJ, Keane, Gordon, Steward and Gleeson JJ approving the proposition that “[i]t is a sound rule of construction to give the same meaning to the same words appearing in different parts of a statute unless there is reason to do otherwise”.

WorkSafe submitted that KRD is correct to point out[73] that s 111(1) does not require the Tribunal to be satisfied that KRD was in fact contravening a provision of the OHS Act before it made the decision to vary the Improvement Notices. However, KRD is not correct to contend that ‘there was no breach’ nor that the ‘issue in dispute was prospective’.[74] A notice cannot be issued under s 111(1) of the OHS Act for prospective purposes, or merely to ensure future compliance. Such a notice must be based on the formation of a reasonable belief of current and continuing contravention, or past and likely future contravention of the OHS Act, and must be directed to remedying the contravention.
[73]KRD, Outline of Submissions, Submission in Kyle Road Developments Pty Ltd v Victorian Workcover Authority (trading as WorkSafe Victoria), S ECI 2022 04812, dated 18 August 2023, [48] (‘KRD’s Outline of Submissions’).
[74]KRD’s Outline of Submissions, [49].

In any event, the Tribunal correctly identified that s 111(1) required a reasonable belief of contravention (rather than proof of contravention); and that this was the required state of satisfaction it had to reach (standing in the shoes of the first instance decision‑maker) to have made the July 2021 Orders.[75]
[75]2022 Tribunal decision, [24]. See also the Improvement Notices, which are reproduced in full in the 2022 Tribunal decision at [20], and the 2021 Tribunal decision at [48], [50].

The July 2021 Orders varied the Improvement Notices to impose significant positive obligations on KRD, including obligations as to which time for compliance was a critical component.[76] Failure to comply with the notices could have significant consequences for KRD, including criminal prosecution.[77] The July 2021 Orders could only be enforced by WorkSafe under s 122(1) of the VCAT Act.
[76]The Tribunal correctly accepted the submission of the applicant on this point which it recorded in its 2022 Tribunal decision at [85] as follows: ‘The VWA contended that it was ‘critical’ to note that the time for compliance is not something separate from the substantive decision made by the Tribunal. It referred to s 111(2)(c) of the OHS Act, as an essential (and indeed mandatory) part of any decision to issue an improvement notice’.
[77]The Authority can prosecute a failure to comply with an improvement notice under s 111(4) of the OHS Act.

It follows that, notwithstanding the July 2021 Orders were made in terms proposed by KRD, the Tribunal was correct to conclude that the orders themselves could not properly be described as orders made in KRD’s favour.

Analysis — Question 1

Key observations of the Tribunal

After considering the parties’ written submissions and hearing oral submissions, the Tribunal dismissed KRD’s application on the basis that KRD was not a person in whose favour an order of the Tribunal was made under s 120A of the VCAT Act (‘the 2022 Tribunal decision’). The Tribunal also made brief remarks as to the findings it would have made if it had concluded that KRD was entitled to make its application. In its written reasons, the Tribunal summarised the background to the substantive proceeding and the pertinent parts of the July 2021 Orders.[78]
[78]2022 Tribunal decision, [9]–[30].

The Tribunal reasoned that the question of whether KRD has standing to make a s 120A application depends on the characterisation of Order 2 of the July 2021 Orders and how they came to be made.

In the Tribunal’s analysis, it set out its relevant findings as to the non‑compliance with the OHS Act and Regulations,[79] referred to the part of the 2021 Tribunal decision where it described the relationship between the OHS Act and the relevant EP Act processes, its finding that the proposed method did not amount to re‑use, and its consideration and conclusion that KRD would comply with the OHS Act and Regulations through its proposal of encapsulation without prior abatement as opposed to the WorkSafe proposal.[80]
[79]2022 Tribunal decision, [36].
[80]2022 Tribunal decision, [37]–[43].

Correct construction of s 120A

The interpretation of a statutory provision begins and ends with a consideration of the statutory text.[81] The meaning of the text also requires consideration of its context, general purpose and the policy of each provision.[82] The history of the provision and extrinsic materials may assist in determining the meaning of the statutory text, although they cannot displace its clear meaning.[83]
[81]Thiess v Collector of Customs (2014) 250 CLR 664, [22].
[82]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, [70].
[83]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, [47].

There is an expectation that words used in legislation will be given their same meaning wherever they appear. However, the use of the word ‘enforcement’ in s 121 and 122 stands in contradistinction to its use in s 120A where it is used with the word compliance. In my view, those words must be given some meaning and work to do. There is a textual difference on the plain reading of the words by the addition of the reference to ‘compliance’.

The words of ss 121 and 122 directly deal with the issue of enforcement of monetary and non‑monetary orders and the process by which the next step is undertaken, that is the facilitation of the final enforcement of those types of orders.

The purpose and intent of the introduction of the changes to the legislation was to remove the onerous requirements for parties to file documents in the courts as was previously required to enforce the Tribunal’s orders. The Tribunal having no inherent enforcement power relies upon the enforcement powers within the courts. The mischief that the amendments were intended to remedy was the issue of complexity of enforceability, and the amendments to ss 121 and 122 provided a clear pathway for utilisation of the enforcement procedures available in the courts. This observation of the purpose of the changes to these sections is consistent with the Explanatory Memorandum when read as a whole. I disagree with the conclusion sought to be drawn by WorkSafe’s submission by reference to the extract from the Explanatory Memorandum referred to above (at [86]). I read the Explanatory Memorandum as drawing a distinction between the remediation role of s 120A and any right or jurisdiction to appeal or review an order.

The terms of s 120A, whilst using the phrase ‘in whose favour an order is made’, is not confined to remedying a problem with enforcement of the order but also with compliance. The section is a remedial one, not one which is directed to the process of enforcement, as are ss 121 and 122. On the words used and in the context of these three provisions, I am of the view that they refer to and intend to deal with different parts of the effect of the Tribunal’s orders and stage of enforcement. Section 120A permits the Tribunal to re‑open an otherwise final order to remedy a problem with the enforcement or compliance. The VCAT Act provides for limited statutory ability to amend an order once made.[84] In my view, s 120A has a different role and purpose within the suite of enforcement provisions in Division 9 of Part 4 of the VCAT Act.
[84]For example, s 119 which provides for correction of an order for clerical or accidental slip or omission, miscalculation of figures and the like or defect of form, and s 120 which provides for re‑opening an order on substantive grounds in the limited circumstances where a person did not appeal and was not represented at the hearing at which the order was made.

I also disagree with the reliance by WorkSafe on comparison with s 115C of the VCAT Act which uses the phrase or concept of ‘a party who has substantially succeeded in a proceeding against another party’ to suggest that these words could have been adopted by the legislature if that was in fact intended. That situation deals with a limited number of enabling enactments which empower the Tribunal to reimburse fees. It is in addition and not in derogation of the Tribunal’s power to award costs. Its purpose was to provide an incentive for parties not to bring or defend unmeritorious matters.

To determine whether an order is in a certain party’s favour requires the Tribunal to characterise the order and how it came to be made. In this, the Tribunal was correct to identify the task to be undertaken.

However, in my view, taking into account the plain words of the section, the context and purpose of what the Tribunal was required to do was to look at what the power of review the enabling enactment gave the Tribunal, whose right of review was being exercised and the substantive outcome. To approach the task as it did, in my view, has unduly restricted the operation of the section. Looking at the underlying issue in dispute rather than looking at the right of review upon which the Tribunal exercises its jurisdiction and the outcome of that process, unduly restricted the construction of this standing provision. It would be contrary to the fundamental purpose of the Tribunal’s review jurisdiction that a party who has a right to review a decision made by a statutory authority under an enabling enactment, exercising that right of review, as in this case successfully, would be precluded from re‑opening an order by limiting the use of s 120A.

As the Explanatory Memorandum states, the limitation on s 120A is that it is not a means of appeal or an opportunity for collateral attack. Unless the order once made is challenged pursuant to s 148 (limited to a question of law) or by utilisation of the ‘slip rule’ provided for in s 119 or by re‑opening pursuant to s 120 (where the order is made in a party’s absence), the orders are final. The Tribunal’s remedial powers are limited to those that the VCAT Act specifies.

In the proceeding before the Tribunal, the application was brought by KRD as an ‘eligible person’ under s 127 of the OHS legislation. Only an eligible person, as defined in the Table to s 127, may bring the application to review the Notices. KRD sought amendment to the Improvement Notices and the Tribunal agreed to vary the Improvement Notices as requested. WorkSafe’s case before the Tribunal was that the Improvement Notices be set aside in their entirely to allow the EPA processes to deal with the issues of concern or that certain areas of asbestos affected soil be dealt with consistently with the Improvement Notices.[85] The Tribunal agreed with KRD as to the compliance with the Improvement Notices. The July 2021 Orders made reflect that decision on the merits.
[85]2021 Tribunal decision, [117]–[118].

The task for the Tribunal in determining whether the jurisdiction is enlivened to re‑open an order requires the Tribunal to make a finding as to in whose favour the orders sought were made. This will require the Tribunal to consider the source of its jurisdiction or power under the respective enabling enactment (which may well vary if the relevant order arises from a review or is in the Tribunal’s original jurisdiction in an inter‑partes dispute), then who has brought the application, and the substantive outcome of the orders made.

Applying this approach, the orders made by the Tribunal in Orders 2 and 3 were in KRD’s favour on the merits and those orders were made in the exercise of the Tribunal’s review jurisdiction on the motion of KRD.

Consequently, I am of the view that whilst the Tribunal asked the right question, being the characterisation of how Order 2 came to be made, it did not properly consider the right to review under the OHS legislation, whose application it was (the class of persons who could bring the application), and the substantial merits of the decision. Therefore, the Tribunal misdirected itself as to the correct approach to the question of standing. Accordingly, I would grant leave to appeal on Question 1.

However, notwithstanding this difference of construction and approach to the categorisation of standing, the power of the Tribunal to consider varying an order under s 120A requires consideration of whether there is a problem with enforcing or complying with the order. In this aspect of the Tribunal’s consideration as discussed below, there was no error in the Tribunal’s analysis. As discussed below in respect of Question 2, reading and applying s 120A as a whole, I have determined there is no vitiating error in the Tribunal’s decision arising from Questions 1 and 2. Whilst I will grant leave to appeal in respect of Questions 1 and 2 given the construction issues raised, I am not satisfied that the Tribunal was in error and the appeal on both questions fails.

QUESTION 2 — ‘Problem with enforcing or complying with the order’

KRD’s Submissions

KRD argued that the Tribunal misconstrued s 120A in finding it was not entitled to rely on the section in circumstances where it had a problem in complying with an order.[86] As previously argued before the Tribunal, KRD argued before the Court that it had encountered a practical problem in complying with the July 2021 Orders. Consequently, it contended that the Tribunal could review the order in accordance with s 120A because this situation was a problem with enforcing or complying with the order.
[86]KRD’s Outline of Submissions, [53]–[54], [65]–[66].

The said practical problem in complying with the July 2021 Orders was alleged by KRD to be that it was unable to commence work on site until the outstanding issues with the EPA were resolved. At the time of the substantive hearing, the Tribunal was well aware of this issue,[87] and drafted its orders accordingly.[88] Subsequently, at the s 120A application the Tribunal accepted the issue with the EPA remained ongoing,[89] and that all the evidence ‘pointed to an ongoing dispute with the EPA covering the same ground as was in issue in the lead up to the 2021 substantive hearing’.[90]
[87]2021 Tribunal decision, [19], [66]–[95].
[88]2021 Tribunal decision, [163].
[89]2022 Tribunal decision, [129], [179].
[90]2022 Tribunal decision, [179].

It was submitted that the remediation of Domain 4 directly impacts the sequence and safety of the other remediation works on site. KRD argued that it follows that, as it was unable to commence works, it encountered a practical problem in complying with the order.[91]
[91]KRD forwarded to the Court some correspondence from the EPA dated 7 June 2024 but no application in respect of it was made. I have not taken it into consideration as it was not formally before me.

It was argued that the Tribunal misconstrued the operation of s 120A in finding KRD was not entitled to rely upon the section in circumstances where it had a problem in complying with an order.

Further, it was argued that due to an oversight in the July 2021 Orders, the orders were beyond power because compliance would compel a breach of the law and/or place KRD at risk of prosecution.

WorkSafe’s Submissions

WorkSafe contended that the Tribunal correctly concluded that the problem identified by KRD with complying with the July 2021 Orders was not a problem with the July 2021 Orders (or their workability), but was a consequence of KRD’s own actions (or inaction).[92]
[92]2022 Tribunal decision, [125]–[126].

To the extent that KRD seeks to impugn the Tribunal’s decision on the merits of the s 120A application by Ground 2 (separate to the question of the proper interpretation of the provision), it has failed to identify any legal error in the Tribunal’s approach.

WorkSafe submitted that KRD relied on evidence in this proceeding rather than evidence which was before the Tribunal. Even if it was correct that there are ‘practical problems with compliance’ with the July 2021 Orders within the meaning of s 120A of the VCAT Act, as a matter of fact, the Tribunal’s order cannot be impugned on a question of fact, only a question of law.

WorkSafe argued that, related to this point, the submission that the Tribunal ‘was well aware’ at the time the July 2021 Orders were made that KRD was ‘unable to commence work on site until the outstanding issues with the EPA were resolved’,[93] ought not be accepted. The Tribunal made no finding in reaching the July 2021 Orders that KRD was unable to commence work until the issues with the EPA were resolved. This issue was addressed in the 2022 Tribunal decision at [175]–[176], in a passage not impugned by KRD in this application (citation omitted):

During the substantive hearing, KRD insisted that the EPA processes were entirely separate and irrelevant to how its OHS Act obligations could be met. KRD went so far as to object to a letter from the EPA dated 25 May 2021 being admitted. That letter set out the EPA’s then assessment of the proposals for each of the Domains and recorded that it was agreeable to what KRD had proposed for Domains 1, 2 and 3 but disagreed with the proposal for Domain 4. On the material before me, it seems nothing has changed on that front in the last 15 months.
Given that KRD now relies on the unresolved dispute as to Domain 4 with the EPA, I agreed that KRD’s departure from its earlier position that the EPA processes were irrelevant was ‘remarkable’.

[93]KRD’s Outline of Submissions, [53].

WorkSafe argued that Ground 2 establishes no error of law in the Tribunal’s approach.

Analysis — Question 2

The second part of the construction question is to construe what is intended by the words ‘problem with enforcing or complying with the order’.

In considering whether there is a ‘problem’ with the enforcement or compliance of the order requires an assessment of the cause or character of the ‘problem’.

I agree with the Tribunal’s construction and application of the term ‘problem with enforcing or complying with the order’. The text and context support this view and it is also consistent with the remedial intention of s 120A to which I have referred above in the context of the principle of finality.

In my view, this is supported by the Explanatory Memorandum which makes it clear that the opportunity to re‑open an order is not in the nature of an appeal. It is not an opportunity to revisit the order because of the convenience of a party. There must be a practical or legal problem with the terms of the orders such that it cannot be complied with. In this regard, it was clearly contemplated by the Tribunal’s order that there was an extension of time and that the mechanism for its extension was to be by consent. Its terms in that regard could not be clearer.

This approach to the meaning of ‘problem with enforcing or complying with the order’ is consistent with the approach taken by the Tribunal in other cases.[94] Such an application could only be made where there is some problem with the workability of the original orders. That is, where there is some problem of compliance or enforcement caused by the terms of the orders themselves, rather than by the conduct of a party or external events.
[94]Link and Connect, [54]–[56]; Zhang, [58]; Vukasovic, [22].

The formula ‘practical problem’ apparently comes from the case of Link and Connect, where it was used at [55] and [57]. However, as that case makes clear, it will not be any practical problem complying with an order that will justify an order being re‑opened under s 120A. Rather, the practical problem must be one with the order itself. In Link and Connect, the Tribunal noted at [55]:

I think the Tenant’s application under s 120A is misconceived. Firstly, in my view, the provision is directed at the situation where an order made by the Tribunal is unworkable. The effect of the provision is to make it clear that the Tribunal retains in respect of its orders a supervisory jurisdiction which empowers the Tribunal to intervene if there is a practical problem with enforcement or compliance with an order.

I agree that the order must be inherently unworkable in its terms either because some intervening event, issue or party makes compliance or enforcement impossible. In this regard, the cause of the problem must not be authored by the party seeking to review the order. These cases cited above at [44] demonstrate that approach. To read it otherwise would be, as exemplified by this case, to provide an ongoing review or rolling orders approach to the determination of an application. This is inconsistent with the principle of finality. In practice, where such orders might be appropriate to meet the circumstances and exercise the Tribunal’s jurisdiction, the order would be expected to be appropriately drafted to allow liberty to apply or otherwise provide an order expressed to be on an interim basis.

Thus, whilst the orders made, in my view, were for the benefit of KRD and in their favour, the problem of non‑compliance or enforceability was not a problem which had not been contemplated. Rather, there was a mechanism provided for in the orders themselves. The ‘problem’ identified by KRD was a problem of its own making and not one of the character or cause outside of its control or contemplation of any of the parties when the Tribunal made the July 2021 Orders.

I note that the Tribunal criticised KRD for failing to provide evidence as to why the work could not commence.[95]
[95]2022 Tribunal decision, [169]–[173], [178].

In respect to KRD’s submission that there is a problem with compliance because the effect of non‑compliance by reason of an inconsistency between the requirement of the July 2021 Orders and the EPA remedial requirements placed KRD at risk of prosecution, I have formed the view that this concern is theoretical and overstated. Despite the passage of time, no enforcement action has been taken by WorkSafe nor has there been, as far as it was formally disclosed to the Court, action for enforcement undertaken by the EPA. Further, as submitted by WorkSafe, the terms of the offence provide for KRD to raise the WorkSafe requirements as a reasonable excuse if tested. The question of risk of prosecution, in my view, is overstated in reality.

It is also a matter which was within KRD’s power to agitate for resolution. The issue with the need to get additional permissions from the EPA were known and accepted by the Tribunal in the July 2021 hearing. The July 2021 Orders were crafted to accommodate return to the Tribunal by consent and a 12 month extension for compliance was ordered. The submission to the Tribunal, on the one hand, were that the regimes were separate and EPA consideration ought not trouble the Tribunal. That KRD was the author of its own demise in this course is a conclusion validly implied.

I have concluded that the second part of the requirements of s 120A, being the identification of a problem with enforcement or compliance, has not been characterised in error and no viable question of law arises on this ground. As a consequence, as noted earlier at [110], the effect is that there is no vitiating error in Tribunal’s decision in construing and applying s 120A as a whole in the circumstances here. Whilst I would allow leave to appeal on Question 2, the appeal on this question fails.

QUESTION 3 — Legally unreasonable to refuse to extend time

KRD’s Submissions

As to Ground 3, KRD submitted it was legally unreasonable for the Tribunal to hold that it would have refused to extend the time for compliance even if KRD had complied with s 120A of the VCAT Act.

KRD submitted the Tribunal acted unreasonably when it found the July 2021 Orders ‘were made on the basis that there was no dispute that [KRD] was in breach of its OHS obligations and it was open to issue the notices’.[96] KRD claimed this was a highly prejudicial error by virtue of the Tribunal treating it as having breached the OHS Act in relation to an indictable offence and, moreover, this was a step which the Tribunal expressly declined to take in the substantive hearing. The Tribunal agreed with KRD’s contention that the Tribunal had no power to make findings about past breaches of the OHS Act or the EP Act and it would not be proper to do so.[97] There was no evidence before the Tribunal to support such a conclusion, nor was it open for the Tribunal to draw an inference that there was an implicit acceptance or admission by KRD that it had committed a criminal offence.[98] Indeed, to do so would constitute the conclusion that KRD had entered a guilty plea to an indictable offence.
[96]2022 Tribunal decision, [36], [75], [120].
[97]2021 Tribunal decision, [65], [130]–[132].
[98]2021 Tribunal decision, [15].

Secondly, KRD said the Tribunal acted unreasonably when it found that the July 2021 Orders ‘gave some certainty to the parties and workers who were expected to work on the site in the following year’[99] and that a ‘rolling set of timeframes would mean that KRD’s breaches (which concerned the safety of workers and other persons coming onto site), would mean the OHS Act considerations would remain live for an indefinite period’.[100] Put simply, there was no evidence that any person had been on the site, or would be coming onto the site, until the EPA procedure commenced nor was there evidence of a specific risk to the safety of any person.
[99]2022 Tribunal decision, [129], [153].
[100]2022 Tribunal decision, [182].

Thirdly, KRD submitted the Tribunal acted unreasonably upon finding that KRD ‘did not adduce evidence (as opposed to assertion) that there could be no compliance with any aspect of the varied notices until all matters were resolved with the EPA’.[101]
[101]2022 Tribunal decision, [171].

Fourthly, it was said the Tribunal erred by imposing an order whose fulfillment would compel a breach of law and/or place KRD at risk of prosecution.

KRD submitted that, in reaching its decision, the Tribunal failed to afford KRD procedural fairness, take into account a relevant consideration, and was otherwise legally unreasonable when it failed to take into account the effect of its July 2021 Order in finding that it would have refused an order to extend time for compliance even if KRD had complied with s 120A of the VCAT Act. KRD relies upon the principles of legal unreasonableness outlined at paragraph 12 of KRD’s Reply Submissions dated 13 October 2023.

WorkSafe’s Submissions

WorkSafe submitted the Tribunal’s decision was not affected by legal unreasonableness.

The Tribunal’s finding that the July 2021 Orders ‘were made on the basis that there was no dispute that KRD was in breach of its OHS obligations and it was open to issue the notices’ was plainly open to it. The original decision of the inspector to issue the Improvement Notices was made under s 111 of the OHS Act. The inspector could only lawfully have made that decision if the statutory preconditions in s 111(1) of the OHS Act were met.

WorkSafe asserted that the evidence shows that that condition was met: the inspector stated (in his 7 May 2019 decision) that he reasonably believed that KRD[102] was contravening s 26(1) of the OHS Act because KRD was contravening reg 231 of the OHS Regulations.[103]
[102]2021 Tribunal decision, footnote 1: The Improvement Notices refer to KRD as ‘The Trustee for Armiston Discretionary Trust’, however, at the commencement of the 26 May 2021 hearing, KRD’s Counsel sought an order amending the applicant to KRD as it is the registered proprietor of the Site and so the proper applicant.
[103]As contained in the bundle referred to in the affidavit of Andronicki Milionis affirmed on 29 November 2022, exhibited in Court Book (dated 3 November 2023, filed in S ECI 2022 04812, Supreme Court of Victoria), 5679 (‘Court Book’).

The internal review decisions only varied the time for compliance and not their requirements.[104] The review before the Tribunal, whilst initially seeking to set the Improvement Notices aside, proceeded as a variation to the requirements only.
[104]Internal Review Decision dated 20 November 2019, Court Book, 283 at [25]; Internal Review Decision dated 18 June 2020, Court Book, 284–317.

The Tribunal, in conducting its merits review function, was ‘subject to the same general constraints as the original decision‑maker’ and was therefore required to approach its task ‘as though it were performing the relevant function of the original decision‑maker in accordance with the law as it applied to [that] decision‑maker’.[105] Accordingly, in order to issue varied Improvement Notices, it had to be reasonably satisfied of one of the matters in s 111(1) of the OHS Act. However, in light of the context above and KRD’s positive submission that the Tribunal should issue the Improvement Notices (in varied form), it was at least implicit in KRD’s position that it accepted that the Tribunal had power to issue the Improvement Notices and, therefore, that the precondition to issuing the Improvement Notices in s 111(1) of the OHS Act was met.
[105]See Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250, [14]. See also, e.g., Draper v Victorian Civil and Administrative Tribunal [2022] VSC 486, [70]; Secretary, Department of Environment, Energy and Climate Action v Hanson Construction Materials Pty Ltd [2023] VSC 353, [14].

It was said KRD’s senior counsel explicitly submitted to the Tribunal that it wanted to make ‘abundantly clear’ that it was concerned with ‘compliance with the [OHS Act]’, he referred to the ‘improvement notices’ that he said were ‘at the heart’ of the matter, noted that those notices assert ‘that there has been a contravention of reg 231 of the [OHS Regulations]’, and identified the only question in issue as being ‘what is reasonably practicable at this site as it currently sits’.[106]
[106]Transcript of the Tribunal hearing on 26 May 2021, Court Book, 5170.

WorkSafe argued the Tribunal’s approach was properly shaped by the way that KRD ran its case.[107] In the circumstances described above, KRD’s suggestion that it was ‘legally unreasonable’ for the Tribunal to proceed on the basis that there was ‘no dispute’ that it was in breach of statutory obligations, is untenable and represents (yet another) volte face by it.
[107]See, by analogy, Hong v Minister for Immigration and Border Protection (2019) 269 FCR 47, [65], [71] (Bromwich and Wheelahan JJ); KYMM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1069, [76]–[78].

Finally, WorkSafe contended that, to the extent that KRD submits that it was not open to the Tribunal, as an administrative decision‑maker, to form a reasonable belief that KRD had engaged in conduct that may involve a criminal offence, any such contention is misconceived.[108]
[108]Australian Communications and Media Authority v Today FM (Sydney) Pty Ltd (2015) 255 CLR 352, [33].

It follows that, in the premises, the Tribunal’s finding was not unreasonable.

Furthermore, even if (somehow) the Tribunal’s approach was unreasonable as now alleged, it does not follow that the relief sought by KRD should be granted. To the contrary, it would follow that the Tribunal had no jurisdiction to vary the Improvement Notices in 2021; nor was it open to the Tribunal to re‑open its orders in 2022 to change the date for compliance.

The finding that the making of final orders in a proceeding (the July 2021 Orders) gave certainty to the parties and to workers (the very persons protected by an improvement notice issued under s 111 of the OHS Act) is a legal conclusion, which was plainly open to the Tribunal as a matter of law and logic. The Tribunal’s conclusion at [182] was also plainly open to it, on the same basis. None of the bases upon which KRD would seek to impugn these findings render them unreasonable.

The finding within [129] that workers were expected to work on site in the year following the July 2021 Orders (i.e. in 2022) was open to the Tribunal: KRD adduced evidence that it had a planning permit to complete earthworks by 9 September 2022,[109] a fact noted by the Tribunal in the reasons for the July 2021 Orders at [5] and footnote 3.
[109]As annexed to the witness statement of Michael Barlow dated 5 November 2020, Court Book, 4123.

WorkSafe argued that the Tribunal’s finding that KRD ‘did not adduce evidence (as opposed to assertion) that there could be no compliance with any aspect of the varied notices until all matters were resolved with the EPA’ was open to it. KRD has pointed to no evidence adduced by it before the Tribunal which impugns this finding.

The Tribunal did not impose an order the fulfillment of which would compel a breach of law, or place KRD at risk of prosecution, when it refused the s 120A application in October 2022. WorkSafe contended that, by the time the Tribunal considered the s 120A application, the requirements of the Improvement Notices were spent (KRD having failed to comply with them). The October 2022 Orders thus imposed no obligation whatsoever on KRD.

Analysis — Question 3

The test for legal unreasonableness sets a high bar. The principles as to the narrow class of case in which a decision will be affected by jurisdictional error by reason of it being legally unreasonable are those discussed by the High Court in Minister forImmigration and Citizenship v Li[110] (‘Li’), and more recently in Minister for Immigration and Border Protection v SZVFW[111] (‘SZVFW’).
[110](2013) 249 CLR 332 (‘Li’).
[111](2018) 264 CLR 541 (‘SZVFW’).

The plurality in Li described legal unreasonableness as a ‘conclusion which may be applied to a decision which lacks an evident and intelligible justification’, a characterisation which was reiterated in SZVFW. A conclusion of unreasonableness did not necessarily entail identification of a specific legal error, as the error may be made evident ‘by observing that the result is so unreasonable that it could not have been reached if proper reasoning had been applied on the exercise of the statutory power’.[112]
[112]SZVFW, [10] (Kiefel CJ); [82] (Nettle and Gordon JJ).

The matters raised by KRD were contestable matters and the observations of the Tribunal in each regard, in my view, were open to it.

I agree with the submissions made by WorkSafe in answer to KRD’s allegation of unlawfulness. There is a lack of legal and practical connection between the allegations made by KRD and the claim of illegality and unreasonableness.

As set out above at [130], I do not consider the concern raised by KRD as to the risk of prosecution is a real or practical reality. The need for additional authorisation by the EPA to meet environment protection legislative requirements was known, and the manner in which KRD ran its case before the Tribunal made it clear that the two regimes were separate. It suggests a divide and conquer approach to dealing with the two authorities, both with their respective regulatory obligations that KRD was well aware it had to navigate.

I am not satisfied that any of the matters raised by KRD have substance given that I have found that the Tribunal was not in error in finding that the precondition to the exercise of its power under s 120A had not been established. If the merits of the application were to fail, there is no good reason to extend time to bring the application. That is not a basis for establishing legal unreasonableness in the Tribunal’s exercise of discretion to refuse to extend time. As I have found no error in the exercise of the power under s 120A by the Tribunal, the exercise of the Tribunal’s discretion to refuse an extension of time is of no consequence.

It is difficult to overturn an exercise of discretion by the entity to whom Parliament has granted jurisdiction in the absence of clear error. My view is there is no basis upon which the Tribunal has wrongly exercised its power to allow an extension of time either under s 120A or by s 126 of the VCAT Act. The Huner Valley[113] factors relevant to the exercise of discretion which the parties agreed were applicable[114] were addressed by the Tribunal without error.

QUESTION 4 — Procedural fairness

[113]Hunter Valley Developments Pty Ltd v Minister for Home Affairs and the Environment (1994) 3 FCR 344.

[114]2022 Tribunal decision, [135]; see the discussion of the Hunter Valley principles.

Question 4 is directed at Order 3 of the July 2021 Orders which provided that the time for compliance was extended to 28 July 2022.

KRD’s Submissions

It is submitted by KRD that the extension of time for the compliance order was tainted by error on the basis that:

(a) it failed to afford the parties the precise terms of the order extending time;

(b) in setting the time for compliance, the Tribunal erred in that it imposed an order the fulfilment of which would compel a breach of the law and/or place KRD at risk of prosecution; and

(c) the order made was beyond power.

In particular, KRD said that at the 2021 Tribunal hearing the substantive issue for consideration was whether the measure(s) proposed by KRD to manage the risk posed by material containing asbestos on the site would reduce the risk, so far as was reasonably practicable, consistent with the OHS Act.[115] The Tribunal was aware of, and proceeded on the basis that, KRD was also subject to regulatory intervention by the EPA in respect to the asbestos on site.[116]
[115]2021 Tribunal decision, [19].
[116]2021 Tribunal decision, [86]–[87].

In response to the overlapping regulatory intervention, the RAP dealt with the asbestos on site for both the OHS Act and Regulation purposes and for the Environmental Protection Act 1970 (Vic) (‘the EP Act 1970’) purposes. The Tribunal itself reiterated the need for the orders to appropriately align with the environmental audit process:[117]

As the 2020 RAP will be open to amendment and update, I am satisfied the orders sought by KRD will both provide certainty about the status of the Notices and will appropriately align with the environmental audit process required under the EP Acts. It seems to me that outcome will ensure compliance in a way which is practical and has appropriate regard to parallel and relevant processes.
KRD’s proposed order did not specify a date for compliance. The Notices provided for a period of just under 13 months for compliance and the IRU Decision allowed a further period of just over eight months, I have specified a compliance date being 12 months from the date of the orders. I have granted liberty to apply in the event the parties by consent agree to an extension of that date.
[117]2021 Tribunal decision, [163].

Failing to seek submissions on date for extension for compliance

In imposing a time for compliance, the Tribunal did not seek submissions as to the form of the order, nor did it invite the parties to make submissions. Had it heard from the parties, KRD would have submitted that:

(a) no remediation works could be undertaken until the Clean Up Plan (‘CUP’) (which incorporates the RAP) was approved by the EPA;

(b) by the time the EPA approved the RAP, KRD may be outside the time fixed by Order 3 to remediate the site; and

(c) therefore, the Orders must allow time for the EPA process to be complete before they commence.

Risk of prosecution and orders beyond power

The Tribunal’s July 2021 Orders were beyond power to the extent that Order 3 imposed an obligation whose fulfillment would compel a breach of law or place KRD at risk of prosecution. As the High Court explained in Pottinger v George:[118]

It would not, of course, be proper to decree specific performance if in the result the appellants would be exposed to the risk of prosecution, or, if the absence of consent would render doubtful the validity of the leases referred to above.

[118](1967) 116 CLR 328, 337.

More generally, courts cannot order the commission of unlawful acts.[119]
[119]See Rowell v Pratt [1938] AC 101, 106; [1937] 3 All ER 660; L U Simon Builders Pty Ltd v Victorian Building Authority [2017] VSC 805, [55].

Paragraph 3.4 of the EPA Notice issued to KRD required it to submit a CUP (which includes a RAP) for approval by the EPA.[120] The EPA did not approve the CUP during the life of the July 2021 Orders. Indeed, it was not until 29 August 2022 that the EPA advised KRD that it refused to the approve the CUP in respect of Domain 4, but it did approve it in respect of Domains 2 and 3.[121]
[120]Amended Clean Up Notice (90010258), Court Book, 5827.
[121]Letter from the EPA to Kylie Hall, Holding Redlich, dated 29 August 2022, Court Book, 5786.

KRD argued it was an indictable offence against s 62(3) of the EP Act 1970 with a maximum penalty of 2,400 penalty units to breach the requirements of a Clean Up Notice or, in this case, to perform clean‑up work without an approved CUP.

On 1 July 2021, the EP Act 1970 ceased and was replaced that day by the EP Act. The transitional provisions for the Act gave force to Clean Up Notices for a further two years after the repeal of the EP Act 1970 (i.e. until 30 June 2023).[122] Consequently, a failure to comply with the Clean Up Notice would have constituted a breach of the EP Act 1970.[123]
[122]The transitional provisions of the Environment Protection Act 2017 contain a provision at s 476 to the effect that a notice made/issued under the old Act (defined in s 468 to be the (Environment Protection Act 1970) which is in force immediately before the commencement day (i.e. 1 July 2021) continue in force on and after the commencement as if the old Act had not been repealed. Section 476(2) contains the provision that there is a 2‑year sunset on a notice in force on 1 July 2021 until 1 July 2023.
[123]The EPA issued Environmental Action Notice (00001912) pursuant to s 274 of the EP Act on 3 February 2022.

Further, from 1 July 2021, s 25 of the EP Act made it an indictable offence with a maximum penalty of 10,000 penalty units for a body corporate to engage in an activity which creates a risk of harm to human health or the environment if they do not minimize the risk, so far as is reasonably practicable. In the circumstances where the EPA’s position in respect to Domain 4 remained contested and uncertain, KRD said there was a real risk that it could be prosecuted for breaching s 25 of the EP Act.

Moreover, had KRD done any work on a piece‑by‑piece basis, it could also have been prosecuted under ss 23 and 26 of the OHS Act for breaching its duty to perform the work in a way that was safe, so far as was reasonably practicable.

WorkSafe’s Submissions

Extension of time required

Firstly, KRD requires a significant extension of time to seek leave to appeal from any of the Tribunal’s July 2021 Orders. No formal extension of time has been sought and, even if KRD were to do so, no extension of time should be granted. WorkSafe argued that it follows that the Court ought not entertain Question 4.

WorkSafe noted that under s 148(2)(a) of the VCAT Act, an application for leave to appeal from an order of the Tribunal must be made within 28 days. By s 148(5) of the VCAT Act, this Court may extend that time. To seek leave to appeal the July 2021 Orders within the statutory timeframe, KRD would have been required to file a notice of appeal by 26 August 2021. The Amended Notice of Appeal was filed on 22 December 2023, almost 28 months outside the time limit prescribed by s 148(2)(a).

While s 148(5) does not specify criteria by which the Court should determine any such application, in Brandwill Holdings Pty Ltd v Jonson[124] the Court said:
[124][2014] VSC 356, [12]–[13], [15].

The principles applicable to the exercise of the discretion to extend time under s 148(5) of the VCAT Act are as follows:
(a)The power to grant an extension of time is discretionary and its exercise is not automatic;
(b)The purpose of the discretion is to do justice between the parties;
(c)There are no fixed or binding rules for the exercise of the discretion and each case depends on its facts;
(d)There are, however, factors that influence the exercise of the discretion, including the length of and reasons for the delay, whether there is an arguable case and the extent of any prejudice to the respondents;
(e)An extension will not be granted if the case is hopeless, unarguable or bound to fail; and
(f)The party seeking the extension bears the onus of proving it should be granted.

On any view, in order to be granted the indulgence of an extension of time, the applicant must provide a reasonable explanation for the delay. This is especially so when the delay is significant. In this case, the delay was more than 7 months. This is a very long delay in bringing an application for leave to appeal a decision of the Tribunal for which detailed and cogent reasons were given.
…
… [W]hatever the merits of the proposed appeal and the public interest in it being heard and determined, the applicant must still provide a good explanation for the delay. This too has to do with the requirement to do justice between the parties. The legislature has decided that the period in which an appeal may be brought from a Tribunal decision is limited. As McHugh J said in Brisbane South Reginal Health Authority v Taylor, a limitation period should not be seen (sic) as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period even if this may result in a good cause of action being defeated. In this case, the legislature has created only a small window in which to bring an appeal from the Tribunal. This no doubt has to do with the nature of the Tribunal’s jurisdiction and as well as the more general need for finality in litigation. The parties to the Tribunal proceeding are entitled to the measure of certainty that this constraint provides. A good reason for the delay therefore remains a very important consideration for the exercise of the Court’s discretion to extend time.

Applying the case law, WorkSafe argued an extension of time should be refused because KRD’s case is hopeless. Further, and in any event, an extension of time should be refused because KRD has provided no explanation for failing to seek leave to appeal within time.

Question 4 is not a question of law

WorkSafe asserts that by proposed Question 4, KRD would ask:

Did the Tribunal err at law when it varied the time for compliance with the notices in the 29 July 2021 Order?

First, as stated by the Full Court of the Federal Court:[125]

…[M]erely to assert that the Tribunal erred in law in making a particular finding is not to state a question of law. We also agree with the later statement by Ryan J, at 527, that: “[I]t simply begs the question of law to commence it with the words ‘whether the Tribunal erred in law’. If the question, properly analysed, is not a question of law no amount of formulary like ‘erred in law’ or ‘was open as a matter of law’ can make it into a question of law”. (Emphasis added). But this is not to say that it is impermissible to commence a question of law for the purposes of s 44 with the expression ‘whether the Tribunal erred in law’ if that is given sufficiently precise content by what follows.

[125]Haritos v Commissioner of Taxation (2015) 233 FCR 315, [92], Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ (as her Honour then was).

Secondly, the High Court[126] has emphasised the need for precision in defining the question of law upon which an appeal under s 148 of the VCAT Act is brought, saying:

There is a need for better definition of the questions of law upon an appeal to the Court of Appeal under s 148 of the VCAT Act than appeared in these proceedings. The questions of law are not to be distilled from the grounds of appeal. What Gummow J said of s 44 of the Commonwealth AAT Act in TNT Skypak International (Aust) Pty Ltd v FCT is true also of s 148:
… The existence of a question of law is … not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself.

[126]Osland v Secretary to the Department of Justice (2010) 241 CLR 320, [21] French CJ, Gummow and Bell JJ.

Here, it is impossible to ascertain any question of law from proposed Question 4. The use of the formulary ‘erred in law’ does not serve to convert a question that is not a question of law into a question of law. Further, KRD is not permitted to ask the Court to distil the question of law from the grounds of appeal.

KRD was not denied procedural fairness

The precise nature of KRD’s claim to have been denied procedural fairness is not clear. That is, KRD does not specify how it says that it was denied an opportunity to make submissions or adduce evidence on the question of the time for compliance with the Improvement Notices as varied by the Tribunal. To the extent that KRD contends that it was surprised by the Tribunal including a time for compliance in the varied notices and was thereby denied a right to make submissions on that question, its contention cannot be sustained.

In this regard, the High Court made clear in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[127] that the obligation on a decision‑maker is to ‘identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made’.
[127](2006) 228 CLR 152, [29] (citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591‑592).

Similarly, in Minister for Immigration and Citizenship v SZGUR[128], the High Court stated that procedural fairness (emphasis added) ‘requires a decision‑maker to identify for the person affected any critical issue not apparent from the nature of the decision or the terms of the statutory power’.
[128](2011) 241 CLR 594, [9].

Here, before the Tribunal in the substantive hearing, KRD sought that the Improvement Notices be varied. WorkSafe sought that the Improvement Notices be revoked. To vary the Improvement Notices, the Tribunal was required by the clear terms of s 111(2)(c) of the OHS Act[129] to include a date for compliance with the Improvement Notices’ terms. That is, the obligation upon the Tribunal to include a date for compliance was clear from the terms of the statutory power being exercised by it. In those circumstances, the date for compliance was an obvious issue for KRD to address; it was not incumbent on the Tribunal to raise the issue.
[129] Section 111(2) sets out the requirements of an improvement notice. It provides:
An improvement notice must—
(a)state the basis for the inspector's belief on which the issue of the notice is based; and
(b)specify the provision of this Act or the regulations that the inspector considers has been or is likely to be contravened; and
(c)specify a date (with or without a time) by which the person is required to remedy the contravention or likely contravention or the matters or activities causing the contravention or likely contravention, that the inspector considers is reasonable having regard to the severity of the risk to the health or safety of any person and the nature of the contravention or likely contravention; and
(d)set out the penalty for contravening the notice; and
(e)state how the person may seek review of the issue of the notice; and
(f)include a statement of the effect of section 117 (proceedings for offences not affected by notices).

The requirement that an improvement notice include a date for compliance, and the fact that this date could be amended as part of the Tribunal’s order was, in any event, an issue of which KRD was well aware. Both the first and second internal reviews dealt with the issue of date for compliance. In the first internal review, KRD initially challenged the method for remedying the contravention. However, KRD changed its application so that it only sought that the date for compliance be changed. The internal reviewer acquiesced to that request and the date for compliance was changed from 7 November 2019 to 5 June 2020. In the second internal review, KRD challenged the method for remedying the contravention. That application was not successful, although in the internal review decision the time for compliance was changed from 5 June 2020 to 10 February 2021.

Further, and in any event, KRD’s contention that it would have raised the issue of the EPA process at hearing if it knew that the Tribunal was going to include a date for compliance in the Improvement Notices should not be accepted. On the contrary, KRD contended at the Tribunal hearing that the EPA processes were matters the Tribunal was prohibited from taking into account.

No risk of prosecution

WorkSafe submitted that KRD had not established that it would have committed a criminal offence if it complied with the Improvement Notices. The EP Act notices relied on by KRD do not, in terms, prohibit KRD from conducting a clean‑up of the site unless and until the EPA approves a CUP. The EP Act notices merely require KRD to provide the EPA with a CUP for the EPA’s approval. KRD has pointed to no provision of the EP Act 1970 (or the new EP Act) which would preclude it from taking the steps specified in the Improvement Notices before the EPA approved a CUP. Further, KRD has not made any submissions to preclude the possibility (for example) that complying with the requirements of the OHS Act Improvement Notices would not provide a defence for failing to comply with the EP Act notices.

In WorkSafe’s submission, no requirement of the EP Act would have been breached had KRD complied with the Improvement Notices’ requirements, even before the EPA had approved a CUP. It is true that s 62A(3) of the EP Act 1970 made it a criminal offence for KRD to ‘contravene without reasonable cause the requirements of’ the EP Act notices. However, undertaking work in accordance with the Improvement Notices, before the EPA approved a clean‑up plan, would not have breached the plain terms of the EP Act notices, which required no more than that KRD submit a CUP to the EPA for approval. The EP Act notices impose no other requirement or restriction on KRD, such that it would have breached s 62A(3) of the EP Act 1970 by complying with the Improvement Notices.

The Tribunal was required, when varying the Improvement Notices, to include a date for compliance with the Notices.

On KRD’s argument, any specific date that the Tribunal included in the varied notices in July 2021 might have been a date by which the EPA processes had not finished, and therefore have been a date which falls foul of the argument raised by this aspect of Question 4.

Alternatively, if KRD is suggesting that the Tribunal ought (in July 2021) to have included a date for compliance so far into the future that the EPA processes would be certain to have concluded, then there would have been no utility whatsoever in the Tribunal varying the Improvement Notices rather than setting them aside and letting the EPA processes run their course.

Court has discretion as to whether to grant leave to appeal

It should not do so because no substantial injustice would arise if leave were refused.

ANALYSIS — Question 4

On one view, having found that there was no vitiating error in the Tribunal’s decision to refuse the s 120A application, the resolution of this question becomes largely moot.

The first question to be considered is whether there ought be an extension of time to bring this part of the appeal. Against the exercise of discretion to extend time are factors such as delay, reasons for the delay, fairness to the parties and substantive merit, all of which I am not satisfied fall in favour of the grant of an extension of time.

If no extension of time is granted, the ground has no real prospect of success and leave to appeal pursuant to s 148 of the VCAT Act is properly refused.

However, given the extensive arguments put by the parties, I making the following observations on the merits of the submissions made.

In my view, the propositions put by KRD have no merit in the circumstances of what occurred and the manner in which they prosecuted the 2021 appeal before the Tribunal. The substance and focus of the appeal was the variation of methodology. The Tribunal was required to state a time for compliance by the legislation and no submission was made by KRD to the contrary. If the timing was a clear issue for them, they should have raised it before the Tribunal or acted to rectify the decision as soon as possible, given their now stated concern about risk of prosecution or illegality.

The time to take action was in 2021, not in 2023.

I do not accept that KRD was denied procedural fairness in the circumstances. Further, I accept the submission of WorkSafe in this regard to the task of the Tribunal in making the orders that it did. The Tribunal clearly turned its mind to timing for compliance as the legislation required and provided a mechanism for variation by consent, and by the terms of the orders made. Whilst it is clear that there were no direct submissions on the extended date for compliance, on the material before the Tribunal and taking into account the manner in which KRD ran its case on variation of methodology, it was open to the Tribunal to set the date that it did. I am not satisfied that there was a breach of the requirement to afford procedural fairness in these circumstances.

It is not until several years after the date the Tribunal orders were made that there was any challenge to the Tribunal’s date for compliance. This significant delay (of more than two years) was attempted to be explained away as only coming to the notice of KRD’s legal advisers in the preparation of the appeal brought for the October 2022 Orders.

I am not satisfied that this delay, nor the reason for delay, in conjunction with the lack of merits of the ground raised is persuasive. I am not prepared to extend the time in these circumstances.

Further, I do not consider the test required to be met for legal unreasonableness is met. I do not consider that the matters raised by KRD as to risk of prosecution have any substance (as I have previously noted).

I am unable to discern any error in Tribunal’s process or the outcome of the decision not being open to it.

CONCLUSION

As set out at the commencement of these reasons, there were four issues to be determined.

First, whether an extension of time should be granted to bring an application for leave to appeal pursuant to s 148 of the VCAT Act in respect of the July 2021 Orders. For the reasons set out above, I am not satisfied that an extension of time should be granted as insufficient reason for the significant delay has been identified. Further, in respect of this order and the grounds challenging the extension of the compliance order, they were not of sufficient merit to satisfy the threshold of there being a reasonable prospect of success. Consequently, no leave to appeal the July 2021 Orders is granted.

As to whether to grant leave to appeal the October 2022 Orders, as previously set out, I will grant leave to appeal in respect of the October 2022 Orders on Questions 1 and 2.

However, I am not satisfied that any error in the Tribunal’s orders in respect of Question 1 was a vitiating error. In combination with my analysis in respect of Question 2, the effect is the appeal in respect of these two questions of law will be dismissed.

Consequently, the appropriate form of orders will be that:

(a) Leave to extend time to appeal pursuant to section 148 of the VCAT Act in respect of the July 2021 Orders of the Tribunal is refused.

(b) Leave to appeal the orders of the Tribunal of October 2022 is granted in respect of Questions 1 and 2.

(c) Leave to appeal is refused in respect of Questions 3 and 4.

(d) The appeal is dismissed.

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[2024] VSC 480

14 August 2024