Vella v Heath

This case concerned notices issued by the delegate of the Regulator under s 155 of the Work Health & Safety Act 2011. The Regulator was investigating an accident that occurred in relation to employees of a company in Queensland. Some of the notices were issued to entities related to the Queensland company. The recipients contended that the Regulator acted beyond power in issuing the notices because the related entities were operationally separate from the Queensland company. The court held that the notices were within power. It was irrelevant that the related entities operated separately, as long as the Regulator reasonably believed that information held by the recipients of the notices would assist the Regulator in monitoring or enforcing compliance with the Act.

Davis J

4 April 2024

Comfortdelgro Corporation Australia Ltd is part of a group of companies who provide transport services across Australia. [3]. The operations of Comfortdelgro Australia are divided into four business units, including CDC NSW, CDCVic, CDC Regional and National Patient Transport. [7]. CDC Regional includes two companies, Buslink Pty Ltd and Buslink Southern Pty Ltd who operate bus services in Queensland. [8]. They are wholly owned subsidiaries of Comfortdelgro Corporation Australia. [8]. In 2022, an accident occurred in which two mechanics employed by a company owned by the Buslink companies, died as a result of being struck by a vehicle while they were doing roadside repair. [10]. A similar accident had occurred in Victoria, involving CDCVic employees. [11].

The delegate of the Regulator issued notices under s 155 Work Health & Safety Act 2011 (“the Act”) to Comfortdelgro entities related to CDCVic. The notices sought various documents and answers to various questions related to the Victorian incident and the workplace safety policies of CDCVic. [56]. Notices were also issued to employees of CDCVic.

The Regulator's power arises under s 155 of the Act. That provision applies “if the regulator has reasonable grounds to believe that a person is capable of giving information, providing documents or giving evidence in relation to a possible contravention of this Act or that will assist the regulator to monitor or enforce compliance with this Act”. [27]. The Regulator may issue written notices requiring the person to give the relevant information, documents or evidence. [27]. The Comfortdelgro parties contended that the notices were valid because each business unit of Comfortdelgro operated independently such that information held by CDCVic parties could not be relevant to an investigation of an accident in Queensland. [65], [68].

The Court rejected this submission on two main grounds. First, as a matter of fact, although the operations of each business unit of Comfortdelgro may have been separate, there was evidence of a safety sub-committee organised by the group. [75]–[76]. That committee was targeted at a group approach to safety such that there were reasonable grounds to believe that the CDCVic parties would have had relevant documents and information. [76].

Second, and more importantly, Comfortdelgro’s submissions involved a misinterpretation of the Act. There were two ways in which the Regulator could exercise a power under s 155. [39]–[40]. The Regulator could identify a possible contravention of the Act, believe that the person to whom the notice is issued is capable of giving information in relation to that contravention and hold that belief on reasonable grounds. [39]. Alternatively, the Regulator could believe that the person is capable of giving information that will assist the Regulator to monitor or enforce compliance with the WHS Act and hold that belief on reasonable ground. [40].

The fact that the various Comfortdelgro entities were operationally independent did not mean that the Regulator could not reasonably hold the requisite belief. [73]. Entities totally unrelated to Comfortdelgro might hold information relevant to compliance with the Act. For example, a university who had conducted a study on safety measures which could be taken to protect roadside workers would having information that would assist the regulator to monitor or enforce compliance with the Act. [74]. The Court was therefore not satisfied that the notices were invalid for the reasons identified by Comfortdelgro.

One further issue arose in respect of notices issued to various Comfortdelgro employees. These notices included various specific requests for documents and information, as well as a request for “any other information you believe [the Regulator] should know that may assist with this investigation”. [101].

The Court held that this aspect of the notices was invalid. [111]. It was for the Regulator to form the requisite belief as to whether a person held relevant documents or information. [110]. Although documents can be identified broadly, it is not open to the regulator to cast the onus of identifying relevant documents onto the recipient of the notice. [111]. As such, this aspect of the notices was beyond power. [112].

L Inglis