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P&O Automotive & General Stevedoring Pty Ltd v Chief Executive, Department of Justice and Attorney-General

 

[2011] QSC 417

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

18 January 2012

DELIVERED AT:

Brisbane

HEARING DATE:

15 November 2011

JUDGE:

Martin J

ORDER:

Application dismissed

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – DISTINCTION BETWEEN ADMINISTRATIVE AND JUDICIAL FUNCTIONS – where the applicant conducts a stevedoring business – where, in May 2009, the applicant was responsible for unloading bundles of reinforcing bar from a ship to trucks at the Pinkenba wharf at Brisbane – where during that activity, Francis Ryan, an employee of the applicant, fell approximately 2.5metres to the ground and sustained injuries – where, in January 2010, a complaint was made in the Industrial Magistrates Court alleging that the applicant had failed to discharge its workplace health and safety obligation as defined in the Workplace Health and Safety Act 1995 (Qld) – where the second respondent, as the delegate of the first respondent, made a decision declining the applicant’s proposal to enter into an enforceable undertaking pursuant to Part 5 of the Workplace Health & Safety Act 1995 (Qld) – where the applicant seeks orders pursuant to the Judicial Review Act 1991 (Qld) setting aside the decisions; referring the decision to the first respondent for further consideration in accordance with law; and for costs – where the respondents contend that the decision made was a decision to proceed with the prosecution of the applicant rather than just a refusal to accept an undertaking – whether the decision is an appropriate decision for judicial review – whether court should stay or dismiss the application pursuant to s 48(1)(a) of the Judicial Review Act 1991 (Qld)

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – ERROR RELATING TO FACTS – IRRELEVANT CONSIDERATIONS – RELEVANT CONSIDERATIONS – PROCEDURAL FAIRNESS – EXISTENCE OF OBLIGATION – UNREASONABLENESS – where the applicant conducts a stevedoring business – where, in May 2009, the applicant was responsible for unloading bundles of reinforcing bar from a ship to trucks at the Pinkenba wharf at Brisbane – where during that activity, Francis Ryan, an employee of the applicant, fell approximately 2.5metres to the ground and sustained injuries – where, in January 2010, a complaint was made in the Industrial Magistrates Court alleging that the applicant had failed to discharge its workplace health and safety obligation as defined in the Workplace Health and Safety Act 1995 (Qld) – where the second respondent, as the delegate of the first respondent, made a decision declining the applicant’s proposal to enter into an enforceable undertaking pursuant to Part 5 of the Workplace Health & Safety Act 1995 (Qld) – where the applicant seeks orders pursuant to the Judicial Review Act 1991 (Qld) setting aside the decisions; referring the decision to the first respondent for further consideration in accordance with law; and for costs – where the applicant argues that the respondent took into account an irrelevant consideration, namely two fatalities which occurred after the relevant accident – where the applicant argues the respondent failed to take in account relevant considerations – where the applicant argues that it was denied natural justice because it was unable to make submissions with respect to the fatalities – where the statutory discretion afforded to the decision-maker under the Act is unconfined in its terms – where the applicant contends that there was no evidence to support the respondent’s decision – where the applicant alleges that the decision involved an error of law – where the applicant argues that the decision was generally unreasonable – whether the applicant has satisfied any of the grounds contended for judicial review

Judicial Review Act 1991 (Qld), s 48(1)(a)

Workplace Health & Safety Act 1995 (Qld),  s 7(1), s 28(1)    s 42D, s 42DA, s 42E, s 42F, s 42G

Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247, cited

Barton v The Queen (1980) 147 CLR 75, considered

Commissioner of Police v Reid (1989) 16 NSWLR 453, cited

FAI Insurances Ltd v Winneke (1981-1982) 151 CLR 342, cited

Kioa v West (1985) 159 CLR 550, cited

Maxwell v The Queen (1996) 184 CLR 501, considered

DPP (SA) v B (1998) 194 CLR 566, considered

COUNSEL:

AAJ Horneman-Wren SC for the applicant

P J Davis SC, with AD Scott, for the first and second respondents

SOLICITORS:

Norton Rose Australia for the applicant

GR Cooper, Crown Solicitor for the first and second respondents

[1] On 22 December 2010 the second respondent (“Mr Leahy”), as the delegate of the first respondent, made a decision declining the applicant’s proposal to enter into an enforceable undertaking pursuant to Part 5 of the Workplace Health & Safety Act 1995 (Qld) (“WHS Act”). Pursuant to the provisions of the Judicial Review Act 1991 (Qld) (“JR Act”) the applicant seeks orders:

 

(a) setting aside the decision;

(b) referring the decision to the first respondent for further consideration in accordance with law; and

(c) for costs.

[2] The applicant conducts a stevedoring business in many of Australia’s ports. In May 2009 it was responsible for unloading bundles of reinforcing bar from a ship to trucks which were positioned beside the ship at the Pinkenba wharf at Brisbane. Francis Ryan was an employee of the applicant engaged in the unloading activity. During that activity he fell approximately 2.5 metres to the ground and sustained injuries.

[3] On 8 January 2010 a complaint was made in the Industrial Magistrates Court alleging that the applicant, as a person upon whom a workplace health and safety obligation as defined in s 28(1) of the WHS Act was imposed, failed to discharge that obligation.

[4] In April 2010 the applicant proposed that it enter into an enforceable undertaking under Part 5 of the WHS Act.

[5] On 22 December 2010 Mr Leahy advised the applicant that he had declined the applicant’s offer of an enforceable undertaking.

WHS Act

[6] The WHS Act provides, in part 5, for an enforceable undertaking to be proffered by a person who is the subject of an allegation that the person has contravened sections of the WHS Act. One of the effects of accepting such an undertaking is that any proceeding on foot against the person giving the undertaking must be brought to an end or, if a proceeding for an alleged contravention has not been started before the undertaking starts operating then such a proceeding must not be started.

[7] The sections which are relevant to this matter are:

 

“42D Meaning of workplace health and safety undertaking

(1)A workplace health and safety undertaking is a written undertaking made by a person (the identified person for the undertaking) that—

(a)recognises that the chief executive alleges (the alleged contravention for the undertaking) that the identified person has contravened—

(i) section 24(1); or

(ii)section 167, because of a corporation’s contravention of section 24(1); and

(b) identifies facts and circumstances of the alleged

contravention; and

(c) includes an assurance from the identified person about the identified person’s future behaviour.

(2)The chief executive of a public sector unit may give a workplace health and safety undertaking for the public sector unit.

 

42DA Giving workplace health and safety undertaking

(1)This section applies if the identified person proposes to make a workplace health and safety undertaking.

(2)The undertaking must be received by the chief executive within the time prescribed under a regulation.

 

42E Acceptance and publication of workplace health and

safety undertaking

(1)The chief executive may, by written notice given to the identified person for a workplace health and safety undertaking, accept the workplace health and safety undertaking.

(2)When the chief executive accepts the workplace health and safety undertaking, the undertaking—

(a) starts operating; and

(b) becomes enforceable against the identified person.

(3) The chief executive may publish details of the undertaking.

 

42F Proceeding for alleged contravention

(1)If a proceeding for the alleged contravention for the workplace health and safety undertaking has been started before an industrial magistrate against the identified person for the undertaking before the undertaking starts operating, the chief executive must take the necessary action to bring the proceeding to an end.

(2)If a proceeding for the alleged contravention has not been started before the undertaking starts operating, a proceeding for the alleged contravention must not be started.

 

42G Compliance with undertaking

The identified person for an operating workplace health and safety undertaking must not contravene the undertaking.

Maximum penalty—1000 penalty units.”

The enforceable undertaking

[8] The proposed enforceable undertaking contained the following overview of its terms:

 

“7.1POAGS proposes to enter into the Enforceable Undertaking to address the following key matters, namely:

(1)improvement of job safety analysis for all POAGS management personnel;

(2)improvement of awareness of the risks of working at heights in the stevedoring industry; and

(3)compliance auditing of POAGS' occupational health and safety management system.

7.2POAGS will address these matters by undertaking to:

(1)deliver a national training program on job safety analysis for all management personnel;

(2)develop an educational 15 minute DVD, focusing on working at heights;

(3)conduct regular third party auditing of its occupational health and safety management system;

(4)sponsor and organise, in collaboration with the Port of Brisbane, a community safety day to promote safety in the port. Guest speakers will be engaged and a panel discussion will be organised; and

(5)make a donation to and engage with Kidsafe Qld Inc.”

[9] The applicant valued the benefits to be provided and other costs to be incurred by it at $143,000.

The decision

[10] The Department of Employment and Industrial Relations issued a document in May 2008 concerning enforceable undertakings under the WHS Act and the Electrical Safety Act 2002 (Qld). It was entitled “Information for Applicants” (“the document”). Under the heading “What is the process the Department follows when an obligation holder submits an application for an Enforceable Undertaking?” a number of matters were set out including six principles which were said to apply to the application of enforceable undertakings. They were that:

 

(a) The undertakings will deliver tangible benefits to workers, industry and/or the community;

(b) The undertakings will deliver benefits beyond compliance;

(c) The undertakings will not normally be accepted in cases involving workplace or electrical fatalities;

(d) The undertakings may be publicised;

(e) The undertakings will be monitored; and

(f) The Department will be entitled to recover “reasonable costs” associated with the investigation

[11] The document goes on to say that enforceable undertakings will be considered by the chief executive on a case by case basis and that acceptance will be determined by whether such an undertaking offers the most appropriate enforcement action in the circumstances of the case. The document then provides that, in addition to the general principles referred to above, other factors may be considered, including:

 

(a) The impact of the enforcement action, especially its impact on encouragement and deterrence;

(b) The compliance history of the obligation holder;

(c) The seriousness of the perceived contravention and the actual or potential consequences; and

(d) Whether the incident or nature of the non-compliance was of considerable public concern

[12] The applicant engaged in correspondence with the Department and the undertaking was eventually presented for consideration. Mr Leahy refused the offer of the undertaking and gave reasons. In those reasons he sets out the statutory background and the evidence that he considered. He set out his reasons as follows:

 

5Law and Policy

5.1It is my opinion that this offer of an enforceable undertaking fails to satisfy the specified requirements of the Workplace Health and Safety Act 1995 and the policy requirements and considerations of the Department with respect to the operation of Part 5 of the Act as they have been published.

5.2The undertaking does contain certain positive undertakings. These include:-

a clear statement regarding the facts and circumstances of the alleged contravention;

acknowledgement of the alleged breach;

a statement of regret;

an assurance about the obligation holder's future behaviour:

the development and implementation of an occupational health and safety management system in accordance with AS/NZS 4804:2001 and auditing of the system no less than three times  throughout the life of the undertaking;

a commitment to implement audit recommendations unless exempted as being unreasonable;

monitoring of compliance with the terms of this undertaking; and

recovery of reasonable costs incurred by the department in relation to the alleged contravention.

5.3Re Principle 1- I am of the opinion that the offer of an Enforceable Undertaking will also deliver some tangible benefits to workers, industry and the community. The obligation holder shall: -

Deliver a national training program on job safety analysis for all management personnel;

Develop an educational DVD on risk management and work at height issues specific to port operations for presentation to company employees and broader industry through the Australian Maritime College;

Sponsor a Port of Brisbane Safety, Health and Environment Day to promote occupational health and safety in the Port of Brisbane;

Donate funds to 'Kidsafe', an organisation dedicated to preventing death and injury to children

5.4Re Principle 2 - I am of the opinion that the offer of an Enforceable Undertaking also contains some benefit beyond compliance. These benefits are:-

Third party auditing of the occupational health and safety management system of the obligation holder against the requirements of AS/NZS 4804:2010 no less than three times during the life of the undertaking with audit reports to be provided to the Executive Director, Workplace Health and Safety Queensland.

5.5Re Principle 3 - I am of the opinion in these circumstances that an appropriate Enforceable Undertaking does meet the statutory and policy requirements of the Workplace Health and Safety Act 1995 in this respect.

5.6Re Principle 4 - I note that the undertaking does not place a restriction on publication.

5.7Re Principle 5 - I note that the undertaking provides specific monitoring requirements.

5.8Re Principle 6 - I note that the undertaking includes payment of the Departmental costs of the investigation and monitoring activities.

6Additional Considerations

6.1I have also taken into account the following: -

The quantum of the undertaking proposed by the obligation holder.

The objective gravity of this incident and its consequences. I believe that the objective gravity of the offence is in medium range. In considering the objective gravity, I have taken into account such issues as: -

- the adherence by the obligation holder to statutory obligations prior to the event;

- the nature of the incident including the actual and potential risk of injury;

- the culpability of the obligation holder;

- the circumstance of the incident;

- the presence of any aggravating or mitigating factors concerning the alleged offender;

- the degree of co-operation given to the investigating officers during the investigation;

- previous sanctions imposed on the alleged offender by the Department;

- any prior prosecution by the Department against the obligation holder;

- any remorse or lack of remorse of the obligation holder; and

- the obligation holder's level of compliance to any previous enforcement options applied.

The compliance history of the obligation holder. Each application for an enforceable undertaking is assessed on merit on a case by basis; however one of the factors taken into consideration with regard to the merit of an undertaking is the compliance history of the obligation holder. I note that there have been three workplace fatalities at Australian wharves between February and July 2010. Two of these fatalities involved employees of the obligation holder. On 20 February 2010 an employee of the obligation holder sustained fatal injuries when run over by a forklift track at Fisherman Island, Port of Brisbane. On 14 July, 2010 an employee of the obligation holder sustained fatal injuries when a steel beam fell on him at Port of Melbourne, Victoria.

The comments of the injured worker with respect to the proposed undertaking.

7.Decision

7.1I do not believe that an enforceable undertaking is an appropriate enforcement option in this case. After consideration of all of the issues, including the compliance history of the obligation holder and the fatalities that have occurred, my decision is that the offer by P & O Automotive and General Stevedoring Pty Limited for an Enforceable Undertaking in this matter is declined.”

The applicant’s argument

[13] The applicant’s argument is in five broad parts.

[14] The first arises out of Mr Leahy having taken into account two workplace fatalities involving employees of the applicant. These occurred after the injury to Mr Ryan. This, it was argued, was an improper exercise of power under s 42E of the WHS Act because:

 

(a) they were irrelevant considerations. In his statement of reasons Mr Leahy refers to these events under the heading “The compliance history of the obligation older”.  The WHS Act does not refer to a “compliance history” but the guidelines published by the relevant department do.

(b) in taking them into account, he failed to take into account relevant considerations, namely:

(i) that the fatalities had not been the subject of any judicial finding or admission of any failure to comply with the WHS Act or similar legislation;

(ii) whether there had been a contravention of the WHS Act or any similar legislation; and

(iii) any defence which the applicant might have in respect of any alleged contravention of the WHS Act or similar legislation.

(c) taking them into account involved a breach of the rules of natural justice when:

(i) the applicant was not given any notice that such incidents might be considered;

(ii) it was not apparent from the terms of the WHS Act or the guidelines that such incidents might be considered;

(iii) the applicant was not provided with any opportunity to provide information or make submissions in respect to those incidents; and

(iv) the applicant was not given any notice of the substance of any material before the second respondent relating to those incidents.

[15] The second part of the argument arises out of Mr Leahy taking into account the comments of the injured employee when the applicant was not given:

 

(i) any notice of the substance of those comments; or

(ii) any opportunity to respond to them.

[16] The third part of the argument is that the decision was made without evidence or other material as it was based on a negative finding concerning the applicant’s compliance history.

[17] The fourth part of the argument is that the decision involved an error of law in that Mr Leahy found the applicant’s proposal for an enforceable undertaking failed to satisfy the requirements of the WHS Act and other guidelines.

[18] The fifth part of the argument is that the decision was an improper exercise of power because it was so unreasonable that no reasonable person could have so exercised the power.

Is this an appropriate decision for judicial review?

[19] Section 48(1)(a) of the JR Act provides that the court may stay or dismiss an application such as this if it considers that it would be inappropriate for proceedings in relation to the application to be continued or to grant the application. The respondents contend that this is a situation where it would be inappropriate to proceed. The basis for that submission is that the decision made by Mr Leahy was essentially a decision to proceed with the prosecution of the applicant rather than just a refusal to accept the undertaking.

[20] The WHS Act provides for the prosecution of contraventions of Part 3 of the WHS Act in s 164. Such a prosecution is by way of summary proceedings before an industrial magistrate. These are the proceedings which can be prevented or stopped by the acceptance of an enforceable undertaking – s 42F.

[21] The WHS Act, while providing that the obligations imposed by the Act must be discharged, reinforces that the enforcement of these obligations can be by way of criminal proceedings. It does this by providing that s 23 and s 24 of the Criminal Code do not apply to prosecutions[1] and by making available some specific defences in contravention proceedings[2].

[22] Whether a prosecution is commenced – putting to one side the issue of enforceable undertakings – is a decision for the Inspector or other authorised person to make. And it is one which will be made by taking many things into account – including the public interest – and not merely because there is evidence of a breach.[3]

[23] The nature of the prosecutorial discretion is referred to in the document when it sets out that the overriding consideration when deciding whether to accept an undertaking is whether such an undertaking is the appropriate enforcement option, or whether the obligation holder should be prosecuted through the court system.[4]

[24] There is a demarcation which must be observed between the power of the executive to decide whether or not to prosecute and the power of the Court more generally to review the decisions of the executive. This has been recognised in a number of authorities as being of fundamental importance in the preservation of the integrity of the judicial process.

[25] The general question of the capacity of the court to review a prosecutorial decision was considered in Barton v The Queen[5]. The issue which gave rise to the consideration arose out of the decision of the New South Wales Attorney-General to present ex officio indictments. The parties the subject of those indictments sought orders in the New South Wales Supreme Court quashing the indictments. In their joint reasons, Gibbs ACJ and Mason J observed:

“The Supreme Court of New South Wales has always acted on the view that the exercise of the power is not examinable. As early as 1844 in Reg. v. Macdermott Stephen C.J., speaking for the Court, said of s. 5: ‘By this enactment, therefore, until the establishment of a Grand Jury, the powers and functions of that body are vested exclusively in one officer, without supervision, limitation, or control.’”[6]

[26] Their Honours went on to say:

“It has generally been considered to be undesirable that the court, whose ultimate function it is to determine the accused's guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced—see the speeches in Connelly v. Director of Public Prosecutions and Director of Public Prosecutions v. Humphrys, to which we shall refer shortly—though it may be that in exercising its power to prevent an abuse of process the court will on rare occasions be required to consider whether a prosecution should be permitted to continue. Finally, it cannot be said that the existence of judicial review of the Attorney's decision is essential to the administration of justice for, as we shall see, the court has other powers to ensure that a person charged with a crime is fairly dealt with.[7]

[27] On this part of the joint reasons there was agreement by Stephen, Aickin and Wilson JJ. While this decision was given before the advent of legislation like the JR Act it nevertheless demonstrates a long standing, if not ancient, reluctance on the part of the courts to become involved, in any way, in the prosecutorial process.

[28] In Maxwell v The Queen[8], Dawson and McHugh JJ, relying on Barton v The Queen said:

 

“Our courts do not purport to exercise control over the institution of criminal proceedings, save where it is necessary to do so to prevent an abuse of process or to ensure a fair trial.”[9]

[29] Gaudron and Gummow JJ made this proposition very clear:

“It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process — particularly, its independence and impartiality and the public perception thereof — would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.” [10] (emphasis added)

[30] That lucid enunciation of principle was adopted by Gaudron, Gummow and Hayne JJ in DPP (SA) v B[11] where their Honours said:

“The line between, on the one hand, the decisions whether to institute or continue criminal proceedings (which are decisions the province of the executive) and on the other, decisions directed to ensuring a fair trial of an accused and the prevention of abuse of the court's processes (which are the province of the courts) is of fundamental importance.”

[31] Of course, those cases – Maxwell and DPP(SA) v B – were not specifically concerned with the application of legislation like the JR Act, but the statement of principle is so clearly and strongly made that it is not open to serious debate that it would continue to apply in the face of the JR Act. The reference to “judicial review” in the statement in Maxwell was made at a time when statutorily sanctioned judicial review was well established and the breadth of the statement, including the reference to integrity of the judicial process, leads to the conclusion that their Honours intended to encompass all forms of judicial review. The principle relied upon extends to this type of application because what is sought is an interference with the decision made to prosecute. While the applicant does not seek an order that Mr Leahy accept the undertaking, an order that his decision be set aside and that he reconsider would mean that the Court had become “concerned” with the decision as to who to prosecute.  

[32] These principles apply to prosecutions at all levels because the line between the decisions within the province of the executive and the supervisory power of the courts exists at all levels. This is a case in which it is proper to dismiss the application on the basis that it is inappropriate for proceedings to continue.[12]

Other matters

[33] Had I not decided to dismiss the application under s 48 of the JR Act, I would have dismissed the application on other grounds, which I will now touch on briefly.

[34] In considering the grounds proposed by the applicant it is essential to bear in mind the nature of the process being undertaken by Mr Leahy. The question of whether a prosecution is to occur is not subject to any particular provisions of the WHS Act – it is simply an exercise of the ordinary function of assessing the known facts.

[35] The applicant bases most of it argument on the reference by Mr Leahy to the two fatalities which occurred after the relevant accident. These were relevant to the decision-making process. The decision to prosecute under a statute designed to protect persons requires a broad approach to be taken. The principal object of the WHS Act is to prevent a person’s death, injury or illness being caused by a workplace etc.[13]  The fatalities, although they occurred after the relevant event, were in the same industry, involved the applicant in some way, and were obviously very serious. A court will be slow to find a limitation on the matters which might be taken into account when the overall objective of the legislation is for increased workplace health and safety.

[36] I do not accept that simply because there had been no judicial or other type of official finding with respect to those fatalities that they could not be taken into account. It must be accepted that Mr Leahy would have been aware of that and would have placed that in the balance.

[37] In any case, the “compliance history” to which Mr Leahy refers is not a term which is found in the WHS Act but which is found in the document. The document cannot confine the areas which a decision-maker may properly take into account. The items referred to in the document are there for the assistance of the parties in the creation of a form of undertaking. They should not be regarded as placing limits on the otherwise relevant matters which might be considered when deciding whether or not to prosecute.

[38] It was also argued that Mr Leahy had failed to take into account certain relevant considerations. I do not accept that the applicant has established that the there were any matters which Mr Leahy was required to take into account and which were not. It must not be forgotten that statements of reasons are no more than that. They are not statutes; they are not reasons provided by a judicial officer. They are created in order to inform a person of the matters which led to the making of a decision.

[39] On this issue, again, the applicant says that it was denied natural justice because it was unable to make submissions with respect to the fatalities. There is no general duty to afford natural justice attaching to every decision of an administrative character.[14] In circumstances such as this where the decision in question is one which has been provided for by a statute, then the application of the doctrine of natural justice depends on the construction of the statute. The statutory discretion afforded to the decision-maker under the Act is unconfined in its terms. That is sometimes regarded as an indication that the rules of natural justice have no application.[15]

[40] The public has an interest in the enforcement of the criminal law and that interest is certainly not diminished when it is concerned with statutes designed to protect workplace health and safety. The division of functions between the executive branch and the judicial branch has been referred to above and the division exists at this point with respect to the recognition of the public interest in the enforcement of criminal law – which is the concern of the executive – as opposed to the province of the judiciary which is with respect to the rights and interests of individuals. The only interest the applicant had in the decision of Mr Leahy was its interest in not being prosecuted. Such an interest generally does not attract the rules of natural justice.[16]

[41] The reasons given above with respect to the fatalities apply equally to the argument made by the applicant with respect to Mr Leahy’s taking into account the comments of the injured employee.

[42] The applicant says there was no evidence to support the decision. Section 24 of the   JR Act provides that this ground is not made out unless the decision fits into one of two categories. The decision here does not fit into either category provided under s 24 because it is not contended that any particular matter was required to be established as a condition precedent to the making of the decision and the second aspect of that section is not satisfied because it relies upon constraints on Mr Leahy’s discretion which are found not to exist in the paragraphs above.

[43] The applicant alleges that the decision involved an error of law because Mr Leahy found that the proposal for an enforceable undertaking failed to satisfy the requirements of the Act. The decision of Mr Leahy was that accepting the undertaking was not an appropriate enforcement option. That conclusion was made after a consideration of a number of matters. It was open to him to do so.

[44] Finally, there is a general ground of unreasonableness. It was not shown that the decision was so unreasonable that no reasonable person could exercise the power in that way.

Order

[45] The application is dismissed.

Footnotes

[1] See s 24(2) WHS Act.

[2] See s 37 WHS Act.

[3] Bateman’s Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd (1998) 194 CLR 247 at [77]-[91] per McHugh J.

[4] This would appear to have been Mr Leahy’s dominant concern – see point 7 of his reasons.

[5] (1980) 147 CLR 75.

[6] Ibid at 93.

[7] Ibid at 94-95.

[8] (1996) 184 CLR 501.

[9] Ibid at 512.

[10] Ibid at 534.

[11] (1998) 194 CLR 566 at [21].

[12] See s 48(1)(a) JR Act.

[13] See s 7(1) WHS Act.

[14] Kioa v West (1985) 159 CLR 550 at 584.

[15] FAI Insurances Ltd v Winneke (1981-1982) 151 CLR 342 at 362.

[16] Commissioner of Police v Reid (1989) 16 NSWLR 453 at 461.

Close

Editorial Notes

  • Published Case Name:

    P&O Automotive & General Stevedoring Pty Ltd v Chief Executive, Dept of Justice and Attorney-General & anor

  • Shortened Case Name:

    P&O Automotive & General Stevedoring Pty Ltd v Chief Executive, Department of Justice and Attorney-General

  • MNC:

    [2011] QSC 417

  • Court:

    QSC

  • Judge(s):

    Martin J

  • Date:

    18 Jan 2012

Litigation History

No Litigation History

Appeal Status

No Status