Your JavaScript is currently disabled. For the best experience viewing this website please enable JavaScript as described here.

Authorised Reports & Unreported Judgments

Exit Distraction Free Reading Mode

Please Note: You are about to print a copy of the onscreen version of this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please return to the case for PDF printing options.

Word Highlighter:
0of0
Change Font and Font Size
Font:
Font Size:
CITE

Unreported Judgment

GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011[2022] ICQ 2Member Davis J and P
Add to List

GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011[2022] ICQ 2

INDUSTRIAL COURT OF QUEENSLAND

CITATION:	GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2022] ICQ 2
PARTIES:	GJT EARTHMOVING PTY LTD ACN 155 053 080 (appellant) v THE REGULATOR UNDER THE WORK HEALTH AND SAFETY ACT 2011 (respondent)
FILE NO/S:	C/2021/20
PROCEEDING:	Appeal
DELIVERED ON:	7 February 2022; delivered ex tempore
HEARING DATE:	7 February 2022
MEMBER:	Davis J, President
ORDERS:	By 28 February 2022, the respondent file and serve upon the appellant a written submission with numbered paragraphs: (a) as to what it submits is the proper construction of the term “asbestos removalist” and explaining why that construction should be preferred; (b) explaining the evidence (by reference to the transcript and exhibits before the Vice President) which proves: (i) grounds for the inspector believing: (A) the appellant is an asbestos removalist; (B) the appellant removed asbestos waste; (C) the appellant did not dispose of the waste consistently with regulation 472 of the Work Health and Safety Regulation 2011; (ii) that the inspector had the requisite belief; (iii) that the holding of the requisite belief was reasonable. By 21 March 2022, the appellant file and serve upon the respondent a written submission which responds to the respondent’s submissions paragraph by paragraph and which includes reference to the transcript and exhibits before the Vice President: (a) explaining whether the appellant agrees or disagrees with the construction of the term “asbestos removalist” as submitted by the respondent; (b) if the appellant disagrees with the respondent’s submissions as to the construction of the term “asbestos removalist”, then explain: (i) what is the preferred construction; and (ii) why. (c) explaining whether the appellant agrees that the evidence identified by the respondent was before the Vice President and identify any contrary evidence upon which it relies by reference to the transcript and exhibits before the Vice President. (d) articulate concise grounds of appeal identifying errors of law or excess or want of jurisdiction or other grounds upon which it wishes to rely; By 21 March 2022, the appellant file and serve upon the respondent any application: (a) for leave to amend the notice of appeal; (b) leave to appeal on grounds other than error of law or jurisdictional error; (c) any application to adduce further evidence together with affidavit material in support of any such application; any affidavit in support of an application for leave to adduce fresh evidence must, at least: (a) identify precisely the fresh evidence sought to be led; (b) explain whether the evidence was available to the appellant at the time of the hearing before the Vice President; (c) if the evidence was available, explain why it was not led; (d) identify the grounds of appeal or proposed grounds of appeal to which the evidence is relevant. Any affidavit in support of any application for leave to rely upon grounds of appeal other than grounds alleging an error of law or excess or want of jurisdiction should at least: (a) state whether leave is sought in relation to an existing ground or a new ground; (b) where it is said that leave is sought in relation to an existing ground, identify that ground by reference to the application to appeal; (c) where it is said that leave is sought in relation to a new ground, explain why the new ground was not raised in the application to appeal; (d) explaining why the granting of leave is in the public interest. The hearing of the appeal is adjourned to a date to be fixed. The matter be mentioned at 9.15 am on 11 April 2022 at Queen Elizabeth II Courts of Law Complex. Costs reserved.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ADJOURNMENT – where the appellant appealed against a decision of the Queensland Industrial Relations Commission (QIRC) – where the appeal was limited to grounds of error of law or jurisdiction unless by leave – where the rules of the Court provided for the notice of appeal to state “concise grounds of the appeal” – where the notice of appeal failed to do so – where the appeal came on for hearing – where the appellant wished to lead fresh evidence – where the appellant wished to seek leave to raise grounds other than error of law or jurisdiction – where the appeal is not in a fit state to be heard – where the appeal was adjourned with directions Acts Interpretation Act 1954, s 6, s 7 Industrial Relations Act 2016, s 565, s 557 Industrial Relations (Tribunals) Rules 2011, r 129 Statutory Instruments Act 1992, s 7 Work Health and Safety Act 2011, s 191, s 192 Work Health and Safety Regulation 2011, reg 472
CASES:	GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2021] QIRC 306, related
APPEARANCES:	C Richards for the appellant S R McLeod, QC directly instructed by the respondent

[1]
On 6 September 2021, Vice President O'Connor dismissed an application for external review of a decision of an industrial inspector under the Work Health and Safety Act 2011 (the WHS Act) to issue an improvement notice.^[1]
[2]
An appeal from that decision came before me today. For reasons which I will explain, it was necessary to make directions and to adjourn the appeal.
[3]
Regulation 472 of the Work Health and Safety Regulation 2011 (the WHS Regulation) provides as follows:

“472 Disposing of asbestos waste and contaminated personal protective equipment

(1)
Subject to subsections (2) and (3), an asbestos removalist must ensure that asbestos waste—

(a)
is contained and labelled in accordance with the GHS before the waste is removed from an asbestos removal area; and

(b)
is disposed of as soon as practicable at a site authorised to accept asbestos waste.

Maximum penalty—60 penalty units….”

[4]
There are various defined terms within regulation 472(2) and these are:

“asbestos removalist means a person conducting a business or undertaking who carries out asbestos removal work.

asbestos means the asbestiform varieties of mineral silicates belonging to the serpentine or amphibole groups of rock forming minerals including the following—

(a)
actinolite asbestos;

(b)
grunerite (or amosite) asbestos (brown);

(d)
chrysotile asbestos (white);

(e)
crocidolite asbestos (blue);

(f)
tremolite asbestos;

(g)
a mixture that contains 1 or more of the minerals mentioned in paragraphs (a) to (f).

asbestos removal work means—

(a)
work involving the removal of asbestos or ACM; or

(b)
for part 8.10, class A asbestos removal work or class B asbestos removal work.

asbestos waste means asbestos or ACM removed and disposable items used during asbestos removal work including plastic sheeting and disposable tools.

asbestos containing material (ACM) means any material or thing that, as part of its design, contains asbestos.”^[2]

[5]
The WHS Act provides for the appointment of inspectors and ss 191 and 192 provide for the service of improvement notices. These sections provide:

“191 Issue of improvement notices

(1)
This section applies if an inspector reasonably believes that a person—

(a)
is contravening a provision of this Act; or

(b)
has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated.

(2)
The inspector may issue an improvement notice requiring the person to—

(a)
remedy the contravention; or

(b)
prevent a likely contravention from occurring; or

192 Contents of improvement notices

(1)
An improvement notice must state—

(a)
that the inspector believes the person—

(i)
is contravening a provision of this Act; or

(ii)
has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated; and

(b)
the provision the inspector believes is being, or has been, contravened; and

(d)
the day by which the person is required to remedy the contravention or likely contravention.

(2)
An improvement notice may include directions concerning the measures to be taken to remedy the contravention or prevent the likely contravention, or the matters or activities causing the contravention or likely contravention, to which the notice relates.

(3)
The day stated for compliance with the improvement notice must be reasonable in all the circumstances.”

[6]
The reference in s 191 to a contravention of “a provision of this Act” includes a contravention of the WHS Regulation; see Acts Interpretation Act 1954, ss 6 and 7 and Statutory Instruments Act 1992, s 7(3).
[7]
Reading regulation 472 of the WHS Regulation and s 191 of the WHS Act together in the context of the present dispute, in order for the inspector to issue an improvement notice he must reasonably believe that the appellant:

was an “asbestos removalist”;
removed asbestos waste;
disposed of it other than at a site authorised to accept asbestos waste or otherwise in breach of regulation 472.

[8]
After hearing evidence and argument for five days, the Vice President held that:

the inspector reasonably believed the three things required by regulation 472;
therefore, the inspector reasonably believed that the appellant contravened a provision of the Act, namely regulation 472; and
the improvement notice was validly issued.

[9]
From that decision, the appellant appealed. Mr Richards, who is not a lawyer, is appearing as its advocate.
[10]
The appeal lies to this court by s 557 of the IR Act, which is in these terms:

“557 Appeal from commission

(1)
The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of—

(a)
error of law; or

(b)
excess, or want, of jurisdiction.

(2)
Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court’s leave, on a ground other than—

(a)
error of law; or

(b)
excess, or want, of jurisdiction.

(3)
However, subsections (1) and (2) do not apply to the Minister or another person aggrieved by a determination of the full bench under chapter 4, part 3, division 2.

(4)
If a person may appeal a decision of the commission under both subsections (1) and (2), the person may only appeal against the decision with the court’s leave on a ground mentioned in subsection (2).

(5)
In this section—

commission means the commission, other than the full bench constituted by the president and 2 or more other members.”

[11]
The powers of the Court on appeal are prescribed by s 558:

“558 What court may do

(1)
On an appeal under section 556 or 557, the court may—

(a)
dismiss the appeal; or

(b)
allow the appeal, set aside the decision and substitute another decision; or

(d)
allow the appeal, suspend the operation of the decision and remit the matter, with or without directions, to the commission or an Industrial Magistrates Court to act according to law.

(2)
Also, the court may direct an industrial magistrate to issue a warrant for the appellant’s arrest if—

(a)
under the decision that was appealed, the appellant was sentenced to a term of imprisonment; and

(b)
the appellant was released from custody by a magistrate under the rules made under section 551; and

(c)
after the appeal is decided, discontinued or struck out, the appellant is still required to serve all or part of the term of imprisonment.

(3)
The industrial magistrate must comply with the direction.

(4)
When arrested, the appellant must be taken to a corrective services facility within the meaning of the Corrective Services Act 2006 to serve the unexpired portion of the term of imprisonment to which the appellant was sentenced.”

[12]
Section 557 limits the grounds of appeal to errors of law or excess or want of jurisdiction except by leave when other grounds can be raised. The circumstances in which leave can be given are limited by s 565 of the IR Act, which is in these terms:

“565 When leave for appeal must be given

If an application for leave to appeal is made under section 554, 557 or 560, the Court of Appeal, court or full bench—

(a)
must give leave if it is satisfied it is in the public interest to do so; and

(b)
may not give leave other than under paragraph (a).”

[13]
Rule 129 of the Industrial Relations (Tribunals) Rules 2011 concerns applications to appeal under s 557 of the IR Act. That rule provides, amongst other things, that the notice of appeal must state “concise grounds of the appeal”.
[14]
That has not occurred here. There has been, with respect, no real attempt to articulate an error of law in relation to the critical findings, namely that the inspector who issued the improvement notice reasonably believed the things prescribed by regulation 472. There is also no clear articulation of the manner in which the Vice President has allegedly acted in excess of jurisdiction or otherwise committed jurisdictional error.
[15]
No application was made by the respondent to strike out the notice of appeal notwithstanding the non-compliance with the Rules. The respondent has taken a pragmatic and sensible approach to the appeal. In essence, it says:

there was evidence upon which the inspector could have held a reasonable belief (as required by s 191 of the WHS Act) of the things specified in regulation 472;
the Vice President accepted that evidence;
his findings are not infected by legal or jurisdictional error.

[16]
Mr Richards, who appeared for the appellant, is obviously attempting to do his best. However, the notice of appeal does not articulate proper grounds; and neither do the written submissions he has filed. The oral submissions were not focussed either. Further, in the course of argument, Mr Richards flagged that he may seek leave to raise grounds other than error of law or jurisdiction and further that he may seek to adduce fresh evidence.
[17]
The appeal was in such a state that justice could not be done to it by hearing it today.
[18]
It seems to me that there may be a question of law as to the proper construction of the term “asbestos removalist”. The evidence which was accepted by the Vice President was that the appellant removed the asbestos the subject of the improvement notice. There was other evidence that the appellant may have removed asbestos from sites on other occasions. A question arises though as to whether isolated incidents render the appellant “a person conducting a business or undertaking who carries out asbestos removal work”.
[19]
Mr Richards, I think, wishes to submit that the proper construction of the definition is that to be caught, the appellant must be “conducting a business or undertaking … [of] asbestos removal work”.
[20]
Another possible construction is that to be caught, the appellant must:

be conducting “a business or undertaking”; and
carries out asbestos removal work.

[21]
If that latter proposed construction is the correct one, then it would be sufficient perhaps for the inspector to have been satisfied that the appellant conducts a business of earthmoving and the appellant “carries out asbestos removal work” which it has been found to have done on this occasion. Full submissions on this issue can be heard on the hearing of the appeal.
[22]
Even though the appellant has carriage of the appeal, in my view, it is appropriate to direct the respondent to clearly articulate its case that the inspector held the appropriate reasonable belief and then have the appellant respond to that. If there are additional grounds of appeal, then they should be clearly articulated by the appellant.
[23]
Both parties were content for all that to be dealt with by written submissions unless a party applies to make further oral submissions after seeing their opponent’s written submissions. However, it may be premature to determine now how the appeal ought ultimately to be disposed of. Directions should be given, and the matter further mentioned.
[24]
If the appellant wishes to make application for leave to raise new grounds or to adduce fresh evidence, it should do that forthwith, but that can be dealt with while the other directions are being complied with.
[25]
The parties agreed that costs should be reserved. That is appropriate.

Orders

[26]
The orders of the Court are:

By 28 February 2022, the respondent file and serve upon the appellant a written submission with numbered paragraphs:

(a)
as to what it submits is the proper construction of the term “asbestos removalist” and explaining why that construction should be preferred;

(b)
explaining the evidence (by reference to the transcript and exhibits before the Vice President) which proves:

(i)
grounds for the inspector believing:

(a)
the appellant is an asbestos removalist;

(b)
the appellant removed asbestos waste;

(c)
the appellant did not dispose of the waste consistently with regulation 472 of the Work Health and Safety Regulation 2011;

(ii)
that the inspector had the requisite belief;

(iii)
that the holding of the requisite belief was reasonable.

By 21 March 2022, the appellant file and serve upon the respondent a written submission which responds to the respondent’s submissions paragraph by paragraph and which includes reference to the transcript and exhibits before the Vice President:

(a)
explaining whether the appellant agrees or disagrees with the construction of the term “asbestos removalist” as submitted by the respondent;

(b)
if the appellant disagrees with the respondent’s submissions as to the construction of the term “asbestos removalist”, then explain:

(i)
what is the preferred construction; and
(ii)
why.

(c)
explaining whether the appellant agrees that the evidence identified by the respondent was before the Vice President and identify any contrary evidence upon which it relies by reference to the transcript and exhibits before the Vice President.

(d)
articulate concise grounds of appeal identifying errors of law or excess or want of jurisdiction or other grounds upon which it wishes to rely;

By 21 March 2022, the appellant file and serve upon the respondent any application:

(a)
for leave to amend the notice of appeal;

(b)
leave to appeal on grounds other than error of law or jurisdictional error;

together with affidavit material in support of any such application;

Any affidavit in support of an application for leave to adduce fresh evidence must, at least:

(a)
identify precisely the fresh evidence sought to be led;

(b)
explain whether the evidence was available to the appellant at the time of the hearing before the Vice President;

(d)
identify the grounds of appeal or proposed grounds of appeal to which the evidence is relevant.

Any affidavit in support of any application for leave to rely upon grounds of appeal other than grounds alleging an error of law or excess or want of jurisdiction should at least:

(a)
state whether leave is sought in relation to an existing ground or a new ground;

(b)
where it is said that leave is sought in relation to an existing ground, identify that ground by reference to the application to appeal;

(c)
where it is said that leave is sought in relation to a new ground, explain why the new ground was not raised in the application to appeal;

(d)
explaining why the granting of leave is in the public interest.

The hearing of the appeal is adjourned to a date to be fixed.
The matter be mentioned at 9:15am on 11 April 2022 at Queen Elizabeth II Courts of Law Complex.
Costs reserved.

Footnotes

[1]GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2011] QIRC 306.

[2]Work Health and Safety Regulation 2011, Schedule 19: Dictionary.

Editorial Notes

Published Case Name:
GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011
Shortened Case Name:
GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011
MNC:
[2022] ICQ 2
Court:
ICQ
Judge(s):
Member Davis J, P
Date:
07 Feb 2022

Appeal Status

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

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011	[2021] QIRC 306	1 citation Jump To Cite 1 - [2021] QIRC 306
GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011	View on:SCLQ[2011] QIRC 306	1 citation Jump To Cite 1 - [2011] QIRC 306

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Gilbert v Metro North Hospital Health Service	[2022] ICQ 35	2 citations

Exit Distraction Free Reading Mode

Change Font and Font Size

GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011[2022] ICQ 2