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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Kyle Road Developments Pty Ltd v Victorian WorkCover Authority [2024] VSC 480
Case: [2024] VSC 480
Decision Date: 14 August 2024

CaseChat Overview and Summary

Kyle Road Developments Pty Ltd sought leave to appeal against the Victorian Civil and Administrative Tribunal’s decision to vary Improvement Notices issued under the Occupational Health and Safety Act 2004, and the Tribunal's subsequent refusal to re-open its orders. The dispute revolved around the interpretation and application of section 120A of the Victorian Civil and Administrative Tribunal Act 1998, which concerns the power of the Supreme Court to review decisions of the Tribunal. The appellant also challenged the Tribunal’s orders on the grounds of legal unreasonableness and procedural fairness, claiming the Tribunal did not properly consider the risk of prosecution under competing regulatory regimes.

The court was required to determine whether the appellant had standing to bring the application under section 120A of the VCAT Act, and if so, whether there was a real prospect of success in the appeal. The court needed to interpret the phrase "a person in whose favour" the order was made, and whether the appellant fell within this category. Additionally, the court had to assess whether the appellant had provided a sufficient explanation for the delay in bringing the appeal, and whether the substantive matter had any merit.

The court held that the appellant did not have standing to bring the application as it was not a person in whose favour the Tribunal’s orders were made. Even if the appellant had standing, the court found there was no real prospect of success on the appeal, as the appellant had not demonstrated a legal unreasonableness or procedural unfairness in the Tribunal’s decision. The court also found that the appellant had not provided an adequate explanation for the delay in bringing the appeal, and that the substantive matter had no merit. Therefore, the court refused leave to appeal.

The appeal was dismissed, and the orders of the Tribunal were upheld. The court clarified that the appellant was not a person in whose favour the Tribunal’s orders were made, and that the appellant had not demonstrated a real prospect of success in the appeal. The court also found that the appellant had not provided an adequate explanation for the delay in bringing the appeal, and that the substantive matter had no merit.

Orders