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Prime Constructions (Qld) Pty Ltd v The Regulator under the Electrical Safety Act 2002

 

[2019] QCAT 389

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

 

CITATION:

Prime Constructions (Qld) Pty Ltd v The Regulator under the Electrical Safety Act 2002 [2019] QCAT 389

PARTIES:

prime constructions (Qld) pty ltd

(applicant)

 

v

 

the regulator under the electrical safety act 2002

(respondent)

APPLICATION NO/S:

GAR404-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

19 December 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:

The decision to issue electrical protection notice EP200077 is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – general administrative review – powers and functions – correct and preferable decision – character and form of reviewable decision under the Electrical Safety Act 2002 (Qld) – where original decision confirmed on internal review – where original decision reviewable – whether reasonable belief that circumstances causing or likely to cause immediate electrical risk existed at time of original decision

Electrical Safety Act 2002 (Qld), s 4, s 10, s 30, s 40C,

s 147, s 150F, s 167, s 168, s 170, s 171, s 172

Electrical Safety Regulation 2013 (Qld), s 11

Electrical Safety Code of Practice 2013

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24

Attudawage v Medical Board of Australia (No 2) [2011] QCAT 452

Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616

Chief Executive, Department of Environment and

Heritage Protection v Alphadale Pty Ltd [2017] QCA 216

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307

George v Rockett (1990) 93 ALR 483

Kozangolu v Pharmacy Board of Australia [2012] VSCA 295

McDonald v Guardianship and Administration Board [1993] 1 VR 521

Plaintiff M174/2016 v Minister for Immigration & Border Protection [2018] HCA 16

Re SB [2014] FWC 2104

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

REPRESENTATION:

 

Applicant:

D Hegarty of DWF (Australia)

Respondent:

SP Gray of Counsel, instructed by J Webb of the Regulator under the Electrical Safety Act 2002 (Qld)

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

  1. [1]
    This matter relates to the installation and use of electrically powered water bubblers on metal scaffolding at a building construction site in Cairns. In short, an inspector who attended that site thought the water bubblers posed an immediate electrical risk to persons or property and issued an ‘electrical safety protection notice’ (‘the notice’) to Prime Constructions (Qld) Pty Ltd under s 147 of the Electrical Safety Act 2002 (Qld) (‘the ES Act’), directing it to ‘cease installing powered water bubblers on permitter scaffolding’. The notice stated Prime Constructions had contravened sections 30(1) and 40C of the ES Act and s 11 of the Electrical Safety Regulation 2013.
  2. [2]
    The notice was issued on 29 August 2018. On 12 September 2018, Prime Constructions applied for a stay and filed an application for internal review pursuant to s 168 of the ES Act. A stay was refused on 13 September 2018. On 10 October 2018, the internal review decision confirming the original decision to issue the notice was issued. On 7 November 2018, Prime Constructions filed an application for review with the Tribunal pursuant to s 172 of the ES Act. Under s 172 a person can apply, relevantly, for review of an original decision or an internal review decision.[1] 
  3. [3]
    The applicant applied for review in the Tribunal of the original decision.
  4. [4]
    Section 170 of the ES Act deals with the internal review process. 

170 Review of decision

(1) The review entity must review the original decision and make a decision
(review decision)—

(a) to confirm the original decision; or

(b) to vary the original decision; or

(c) to set aside the original decision and make a decision in substitution for the decision set aside.

(2) The review under subsection (1) must be made—

(a) if the review entity is the regulator—within 14 days after giving the confirmation notice; or

(b) if the review entity is the licensing committee—as soon as practicable after giving the confirmation notice.

(3) If the review entity is the regulator, the application must not be dealt with by—

(a) the person who made the original decision; or

(b) a person in a less senior office than the person who made the original decision.

(4) Within 14 days after making the review decision, the review entity must give written notice of the decision to the applicant.

(5) The notice must include an information notice for the decision.

(6) The applicant may apply for a review of the original decision under division 3 if the review entity—

(a) does not review the original decision within the time allowed under subsection (2); or

(b) having reviewed the decision, does not tell the applicant of the review decision within the time allowed under subsection (4).

  1. [5]
    The applicant was, in my view, entitled to apply for review of the original decision notwithstanding it had been the subject of an internal review. The outcome of the internal review was to confirm the original decision. In Chief Executive, Department of Environment and Heritage Protection v Alphadale Pty Ltd[2] it was held by the Queensland Court of Appeal that, in the context of the review provisions in the Environmental Protection Act 1994 (Qld):

If, on review, an original decision is revoked, then it ceases to exist, as would the basis for dissatisfaction of the dissatisfied person who requested the internal review. But, if an original decision is confirmed, it is that decision which continues as the decision which decided the matter.[3]

  1. [6]
    The rationale that applied in Alphadale applies here. There is no provision in s 170 or elsewhere in the ES Act which has the effect of substituting the review decision for the original decision or otherwise superseding it as the decision that has determinatively decided the matter. Section 171 provides for the stay of ‘reviewable decisions on internal review’. It provides:

171 Stay of reviewable decisions on internal review

(1) An application for a review of a decision (other than a decision to issue an electrical safety protection notice, an unsafe equipment notice or a non-disturbance notice) under this division stays the operation of the decision.

(2) If an application is made under this division for a review of a decision to issue an electrical safety protection notice, an unsafe equipment notice or a non-disturbance notice, the review entity for the review may stay the operation of the decision.

(3) The review entity may make the decision to stay the operation of a decision on the review entity’s own initiative or on the application of the applicant for review.

(4) The review entity must make a decision on an application for a stay within 1 working day after the review entity receives the application.

(5) If the review entity has not made a decision to stay a decision within the time set out in subsection (4), the review entity is taken to have made a decision to grant a stay.

(6) A stay of the operation of a decision pending a decision on a review under this division continues until whichever of the following is the earlier—

(a) the end of the prescribed period for applying for a review of the decision under division 3; or

(b) an application for a review under division 3 is made.

  1. [7]
    Under s 171, there was no automatic stay of the original decision pending the internal review decision. Further, there is only power under s 171 to stay the original decision, not the internal review decision. Any stay of the original decision lasts only until the earlier of the end of the period for applying for external review or the time when an application for external review was made. Here, the application for stay of the original decision was refused. As the internal review decision confirmed the original decision, the original decision continued and the applicant was correct in applying for external review of that decision.

The decision under review 

  1. [8]
    The decision under review is the decision on 29 August 2018 by the inspector to issue the electrical safety protection notice EP200077 to Prime Constructions on the basis that he reasonably believed circumstances existed which were likely to cause an ‘immediate electrical risk’ to persons or property at the Bellvue Multirise Constructions Site at 85/87 The Esplanade, Cairns.

The nature of the review function

  1. [9]
    The Tribunal has its own regime governing reviews brought within its review jurisdiction.[4] Section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) provides that the review is to be by way of a ‘fresh hearing on the merits’. The character of the review undertaken in the context of the ES Act will depend on an examination of the relevant provisions in the ES Act.[5]
  2. [10]
    The Tribunal has all the functions of the inspector for the decision under review.[6] The purpose of the review is to produce the correct and preferable decision.[7] The Tribunal may confirm the inspector’s decision or set it aside and either substitute its own decision or return it for reconsideration by the inspector with any directions it considers appropriate.[8]
  3. [11]
    Generally, the review is a new determination of the matter applying the law at the time of the rehearing and according to the evidence offered at the time of the rehearing.[9] This was described by the High Court in Shi v Migration Agents Registration Authority[10] as a general approach to a rehearing de novo which derives from the statutory function of substituting one decision for another. However, the High Court recognised that there will be exceptions to the general approach when the particular nature of the decision under review requires a departure from that approach. As Kirby J said:

Nevertheless, the particular nature of the “decision” in question may sometimes, exceptionally, confine the Tribunal’s attention to the state of evidence as at a particular time.[11]

  1. [12]
    Similarly, Hayne and Heydon JJ said:

Once it is accepted that the Tribunal is not confined to the record before the primary decision-maker, it follows that, unless there is some statutory basis for confining that further material to such as would bear upon circumstances as they existed at the time of the initial decision, the material before the Tribunal will include information about conduct and events that occurred after the decision under review. If there is any such statutory limitation, it would be found in the legislation which empowered the primary decision-maker to act…[12]

  1. [13]
    Kiefel J, with whom Crennan J agreed, said:

Where the decision to be made contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself. Cases which state that the Tribunal is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light. It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time.[13]

  1. [14]
    The precise form of review will therefore depend upon the ‘character and form’ of the administrative decision under review, and the terms of the enactment under which the decision is made.[14] I turn now to consider the nature of the decision under review and to determine, as a consequence, the extent of the review.

The relevant legislative regime

  1. [15]
    The purpose of the ES Act is set out in s 4 which provides:

4 Purpose

(1) This Act is directed at eliminating the human cost to individuals, families and the community of death, injury and destruction that can be caused by electricity.

(2) Accordingly, the purpose of this Act is to establish a legislative framework for—

(a) preventing persons from being killed or injured by electricity; and

(b) preventing property from being destroyed or damaged by electricity.

  1. [16]
    Part 11A of the ES Act deals with Enforcement Measures. Part 11A, Division 2, s 147 is the section that gives an inspector the power to issue an electrical safety protection notice.
  2. [17]
    Section 147 provides:

147 Electrical safety protection notice

(1) This section applies if an inspector reasonably believes that circumstances causing, or likely to cause, an immediate electrical risk to persons or property have arisen at a place.

(2) The inspector may—

(a) direct the person in control of any activity or electrical equipment that caused, or is likely to cause, the circumstances to stop the activity, or to stop using, or allowing to be used, the electrical equipment; and

Example of direction—

A direction may be given requiring a person to stop selling, lending or otherwise disposing of particular electrical equipment.

(b) disconnect electrical equipment from its supply of electricity to the extent the inspector considers necessary to eliminate the electrical risk.

  1. [18]
    Section 147(8) sets out what an electrical safety protection notice must contain and provides:

(8) An electrical safety protection notice must state—

(a) the inspector believes that circumstances causing, or likely to cause, an immediate electrical risk to persons or property have arisen, or are likely to arise, at a place; and

(b) briefly, the circumstances that have caused or are likely to cause the risk; and

(c) if the inspector believes the circumstances involve a contravention, or likely contravention, of a provision of this Act—the provision contravened or likely to be contravened; and

(d) the requirements that must be complied with before any electrical equipment disconnected by the inspector from its supply of electricity may be reconnected.

  1. [19]
    The Notice provided that the inspector reasonably believed that:

Circumstances likely to cause an immediate electrical risk to persons or property have arisen.

The circumstances involve a contravention/likely contravention of the following provision:

Electrical Safety Act 2002 – section(s) 30(1), 40C.

Electrical Safety Regulation 2013 – section(s) 11.

Basis for inspector’s belief: (Briefly describe the circumstances that are causing/are likely to cause the immediate electrical risk).

Construction inspection has identified the Principal Contractor providing electrical powered water bubblers on perimeter scaffold carriageways.

Potential electrical catastrophic risks exist to workers from external influences re powered water bubblers placed on electrically conductive metal scaffolding.

Electrical influences may include –

Mechanical damage from other plant and tools; fire risk associated and subsequent ignition of flammable material ie. shade cloth; direct risk of electric shock via damage of cords supplying the equipment; indirect shock path through metallic structure etc. or any other influence to which the electrical equipment may be exposed under the conditions of its use.

  1. [20]
    Section 30 of the ES Act provides:

30 Primary duty of care

(1) A person conducting a business or undertaking must ensure the person’s business or undertaking is conducted in a way that is electrically safe.

(2) Without limiting subsection (1), the duty includes—

(a) ensuring that all electrical equipment used in the conduct of the person’s business or undertaking is electrically safe; and

(b) if the person’s business or undertaking includes the performance of electrical work, ensuring the electrical safety of all persons and property likely to be affected by the electrical work; and

(c) if the person’s business or undertaking includes the performance of work, whether or not electrical work, involving contact with, or being near to, exposed parts, ensuring persons performing the work are electrically safe.

  1. [21]
    Section 10 is the relevant definition provision. It provides:

10 Meanings of electrical risk, electrically safe and electrical safety

  1. (1)
    Electrical risk means—

(a) in relation to a person, the risk to the person of death, shock or injury caused directly by electricity or originating from electricity; or

(b) in relation to property, the risk to the property of—

(i) damage caused by a cathodic protection system; or

(ii) loss or damage caused directly by electricity or originating from electricity.

  1. (2)
    Electrically safe means—

(a) for a person or property, that the person or property is free from electrical risk; and

(b) for electrical equipment or an electrical installation, that all persons and property are free from electrical risk from the equipment or installation; and

(c) for the way electrical equipment, an electrical installation or the works of an electricity entity are operated or used, that all persons and property are free from electrical risk from the operation or use of the equipment, installation or works; and

(d) for the way electrical work is performed, that all persons are free from electrical risk from the performance of the work; and

(e) for the way a business or undertaking is conducted, that all persons are free from electrical risk from the conduct of the business or undertaking; and

(f) for the way electrical equipment or an electrical installation is installed or repaired, that all persons are free from electrical risk from the installing or repairing of the equipment or installation.

  1. (3)
    Electrical safety, for a person or property, means the person or property is electrically safe.

(4) In this section—

free from electrical risk, for a person or property, means that—

(a) electrical risk to the person or property has been eliminated, so far as is reasonably practicable; or

(b) if it is not reasonably practicable to eliminate electrical risk to the person or property, the risk has been minimised so far as is reasonably practicable.

  1. [22]
    Section 40C provides:

40C Failure to comply with electrical safety duty—category 2

A person commits a category 2 offence if—

(a) the person has an electrical safety duty; and

(b) the person fails to comply with that duty; and

(c) the failure exposes an individual to a risk of death or serious injury or illness.

Maximum penalty—

(a) for an offence committed by an individual. other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—1,500 penalty units; or

(b) for an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—3,000 penalty units; or

(c) for an offence committed by a body corporate—15,000 penalty units.

  1. [23]
    ‘Electrical safety duty’ is defined in s 40A to mean a duty imposed under Division 2.
  2. [24]
    Section 30 imposes a duty and is within Division 2 of the ES Act. The duty imposed by s 30 is therefore an electrical safety duty.
  3. [25]
    I note that reviews in the medical context of decisions to take ‘immediate action’ against a medical practitioner in Victoria under the National Law have been held to require a review based on the evidence at the time of the original decision.[15] In my view, similar considerations apply here. Section 147 requires a notice to be issued where there is an immediate risk to persons or property’. That suggests a temporal limitation, and a requirement to act quickly on the regulator’s part. The decision to issue a notice must be made if circumstances exist which create an immediate risk.
  4. [26]
    The purpose of the review required by s172 of the ES Act, in my view, is to determine whether, if the Tribunal was standing in the shoes of the inspector at the time immediately prior to the issue of the notice, whether, based on the circumstances existing at that time, the belief spoken of in s147 could exist based on those circumstances.
  5. [27]
    It follows, in my view, that the legislative regime of the ES Act, in particular s147, requires a review to be undertaken on the basis of the circumstances that existed at the time of the original decision. Nevertheless, that is not to say the evidence must be so confined. In my view the decision should be considered in light of the evidence that existed at the time of the original decision but also any additional evidence that bears directly upon the position as it was when that decision was made.[16]
  6. [28]
    I turn to consider whether the belief required by s 147 could exist based on the circumstances that existed immediately prior to the issue of the notice. In other words, was there basis for a reasonable belief that the presence of electrically powered water bubblers on perimeter metal scaffolding at the Bellvue construction site was likely to cause an ‘immediate electrical risk’?

Consideration 

  1. [29]
    ‘Electrical risk’ is defined to mean, in relation to a person, the risk to the person of death, shock or injury caused directly by electricity or originating from electricity.[17]
  2. [30]
    There is no definition of ‘reasonable belief’ in the ES Act. In the context of applications for search warrants under the Criminal Code (Qld) and whether there are reasonable grounds for believing that a specified thing will afford evidence as to the commission of an offence, the High Court has held:

When a statute prescribes that there must be “reasonable grounds” for a state of mind – including suspicion or belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person…That requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers…[18]

The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.[19]

  1. [31]
    I have not been referred to any statutory prohibition on the installation of bubblers on scaffolding. There however is a Guidance Note issued by Workplace Health and Safety Queensland which provides:

Issue

Should water coolers (or bubblers) be installed on scaffolding?

Response

If a PCUB decides to install water coolers on scaffolding, the water cooler must have an IP rating suitable for the outdoors, a risk assessment must be undertaken and the risks must be appropriately managed.

It is recommended that the water cooler is moved on to the slab once the slab is poured and if space allows.

Risk Assessment

A risk assessment for each location of a water cooler on scaffolding must be undertaken on a case by case basis. The following factors should be taken into consideration when undertaking a risk assessment: IP rating; Electrical Equipment; Water spillage; Access or egress, Monitoring.

  1. [32]
    Relevantly, under Electrical Equipment the following check points are listed:

Is the water cooler connected to a tested Residual Current Device? (Remember that the scaffold is a large metal structure and that any failure could lead to the entire structure becoming live).

Has the water cooler been tested and tagged in accordance with AS/NZS3012?

Are the electrical extension leads and plugs protected from damage and the weather?

Does the position of any of the electrical extension leads create a trip hazard?

Are the electrical extension leads compliant with AS/NZS 3012?

Are the electrical extension leads protected from damage?

Are the electrical extension leads regularly checked for damage?

  1. [33]
    There is no dispute between the parties regarding the initial location of the bubblers, that is, on the working deck of the perimeter scaffold. However, the applicant submits that by 28 August 2018 all bubblers on the site were placed on non-conductive ply sheeting in order to eliminate any risk of conduction. The applicant sent correspondence to the inspector which indicated that by 28 August 2018 the bubblers had been ‘weatherproofed’, that they were not in carriageways and that the power leads had been aerially raised and secured. Further, the applicant submitted that the following circumstances were in place by 14 August 2018 with respect to the bubblers:
    1. (a)
      Ensuring the bubblers on the top deck had an IP rating for outdoor use;
    2. (b)
      Ensuring the bubblers were located in corners so as not to impede access/egress;
    3. (c)
      Ensuring double insulated electric leads were used;
    4. (d)
      Ensuring mechanical covers were used for the plug and play socket;
    5. (e)
      Ensuring lead hooks were used to secure electric cables;
    6. (f)
      Weatherproofing the bubblers;
    7. (g)
      Installation of non-conductive insulation under the bubblers to ensure there was no electrical conductive risk between the bubblers and scaffold;
    8. (h)
      Ensuring there were no switchboards on scaffolding; and
    9. (i)
      Ensuring there was no fire risk with respect to the bubblers being in close proximity to the scaffold mesh.
  2. [34]
    I will assume for the purposes of this review that the measures outlined above had in fact been applied prior to the issue of the notice. The respondent did not submit otherwise. The issue is whether the circumstances surrounding the bubblers (including the preventative measures identified above) were such as to give rise to a reasonable belief on 28 August 2018 that the bubblers caused or were likely to cause an immediate electrical risk.
  3. [35]
    In my view, for the reasons which follow, they did.  The ‘reasonable belief’ test is not an onerous one. As noted above, it does not require me to be convinced beyond reasonable doubt that an immediate electrical risk existed but merely to be inclined to accept rather than reject the proposition. The reasonable objective grounds that lead to acceptance of that proposition can be open to conjecture. Moreover the ordinary meaning of ‘risk’ is exposure to the chance of injury or loss.[20] An immediate risk of death, shock or injury from electricity means that there must be a presently existing possibility of death, shock or injury, not that death, shock or injury has actually occurred.
  4. [36]
    The metal scaffolds were not earthed. It is uncontested that water conducts electricity on structures that are not earthed. There was evidence that a water bubbler had been leaking due to defective plumbing connections.[21] The applicant submits that this, although true, is irrelevant because that particular water bubbler was located on a concrete slab and was not one of the bubblers the subject of the notice.[22] In my view, the fact that one of the water bubblers was leaking is relevant whether it happened to be on the metal scaffolding or not. The relevance is that it shows that leakage from bubblers can occur and that there was a risk one of the bubblers on the metal scaffolding could also leak.
  5. [37]
    I accept that the bubblers were not secured to the scaffolding and that in the environment of a construction site could have been knocked so that the bubblers or a part of the bubbler unit came into contact with the metal scaffolding. Further, leaking water could conduct electricity to the scaffolding from any ply sheeting.
  6. [38]
    There was also a heightened risk due to the bubblers being ‘plug-in’ electrical equipment. The presence of electrical cords emanating from the back of the units and being joined either to electrical sockets or to extension cords was also, in my view, dangerous in a construction environment. Although the cords had been lifted off the ground behind the bubblers, there was a risk in such an environment that the electrical cords could have become dislodged or damaged. I note in this regard the Safework Safety Alert relating to an incident on 6 October 2015 when the electric cord from a bubbler was damaged, leading to an electric shock of a worker who had gone to the bubbler to get a drink.[23]
  7. [39]
    Further, apart from the bubbler on the top deck, they had not been designed for outdoor use. The AS/NZS 3000:2018, Electrical Installations, section 4.1.2 provides that electrical equipment shall be installed in accordance with the requirements of that section and the additional requirements as specified in the manufacturer’s instructions. Section 4.1.3 provides that all electrical equipment shall have characteristics appropriate to the conditions to which it is likely to be exposed, to ensure that the electrical equipment is able to function properly at the intended point of installation. This includes characteristics designed to protect against relevant environmental and other influences. Damage from external influences includes mechanical damage, weather and water and accumulation of dust.[24] Electrical accessories installed in an outside area not protected from the weather must have a minimum IP (ingress protection) rating of IP33. The bubblers had an IP rating of 23 when a minimum of 33 is required for appropriate outdoor use. The brand of the bubblers was Zip Economaster.[25] The Manufacturer’s Instructions provide:

The units are for indoor use only and must not be exposed to the elements of nature.[26]

I do not find that the measures taken to ‘weatherproof’ the bubblers were sufficient to adequately ameliorate the effects of positioning bubblers – designed for indoor use – outside.[27]

  1. [40]
    The applicant appears to place some importance on the fact the inspector only attended the site three  times, on the first two occasions did not mention any issue with respect to the bubblers being on the scaffolding and on the third occasion only visited the site for 30 minutes and did not conduct an inspection or walk-around. It also submitted that it was inappropriate for Inspector Hasted to rely on Inspector Savage who was not himself authorised to exercise powers under the ES Act and that Inspector Hasted had not produced his ID as required by the ES Act.[28] Finally, the applicant submitted, the notice was irregular because it failed to direct a person in control of the activity or electrical equipment to stop and/or to disconnect the equipment and instead directed the applicant to stop installing bubblers on the scaffolding in the future.
  2. [41]
    These arguments, in my view, are not relevant to the review. The purpose of the review is not to analyse the process applied by the regulator or by its inspectors.[29] In relation to the terms of the notice, in my view, there was no defect which caused or was likely to cause substantial injustice.[30] I find that the applicant was under no misapprehension as to the effect of the notice, due in part to preceding discussions and email correspondence, that is, that the bubblers had to be moved off the metal scaffolding.
  3. [42]
    The combination of the electricity-powered water bubblers, the prospect of leaking, the fact that the water bubblers were not all designed for outdoor use and the use of metal scaffolding constituted circumstances which in my reasonable belief either caused or were likely to cause an immediate electrical risk to persons using the scaffolding.

Conclusion

  1. [43]
    I confirm the decision to issue electrical protection notice EP200077. 

Footnotes

[1]Electrical Safety Act 2002 (Qld), s 172(c) and (d), s 170(1) (definition of ‘review decision’) (‘ES Act’).

[2][2017] QCA 216.

[3]Ibid, [39].

[4]Queensland Civil and Administrative Tribunal Act 2009 (Qld), Chapter 2, Part 1, Division 3 (‘QCAT Act’).

[5]Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616.

[6]QCAT Act, s 19(c).

[7]QCAT Act, s 20(1).

[8]QCAT Act, s 24.

[9]Attudawage v Medical Board of Australia (No 2) [2011] QCAT 452, [10]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286.

[10](2008) 235 CLR 286.

[11]  Ibid, [46].

[12]  Ibid, [99].

[13]  Ibid, [143].

[14]  McDonald v Guardianship and Administration Board [1993] 1 VR 521, 529.

[15]  Kozangolu v Pharmacy Board of Australia [2012] VSCA 295, [119].

[16]  Ibid, [108].

[17]  ES Act, s 10.

[18]  George v Rockett (1990) 93 ALR 483, 488.

[19]  Ibid, 491.

[20]  Re SB [2014] FWC 2104, [44]-[45].

[21]  Statement of Julian Hasted, filed 29 March 2019, JH7.

[22]Affidavit of Annette Sommerville, filed 11 March 2019, [6].

[23]Ibid, JH13.

[24]Clause 4.1.3.

[25]Statement of Julian Hasted, filed 29 March 2019, [25].

[26]Ibid, JH11, Zip Freestanding Chilled Water Systems ‘Installation and Operating Instructions’ – April 2015 v2.03, 2.

[27]Statement of Annette Sommerville, filed 11 March 2019, [11] and AS7.

[28]ES Act, s 123A.

[29]Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307; Plaintiff M174/2016 v Minister for Immigration & Border Protection [2018] HCA 16, [39].

[30]ES Act, s 150F.

Close

Editorial Notes

  • Published Case Name:

    Prime Constructions (Qld) Pty Ltd v The Regulator under the Electrical Safety Act 2002

  • Shortened Case Name:

    Prime Constructions (Qld) Pty Ltd v The Regulator under the Electrical Safety Act 2002

  • MNC:

    [2019] QCAT 389

  • Court:

    QCAT

  • Judge(s):

    Traves

  • Date:

    19 Dec 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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