REVIEW OF NOTICE - S.51A - OSH ACT

THE WORK HEALTH AND SAFETY TRIBUNAL

CITATION : 2024 WAIRC 00101

CORAM : Commissioner T Emmanuel

HEARD : Wednesday, 20 December 2023

DELIVERED : wednesday, 13 MARCH 2024

FILE NO. : OSHT 4 OF 2021, OSHT 5 OF 2021

BETWEEN : Consolidated Pastoral Company Pty Ltd;

  Hancock Prospecting Pty Ltd

Applicants

AND

WorkSafe Commissioner

Respondent

CatchWords : Industrial Law (WA) - Decisions of the WorkSafe Commissioner revoked and improvement notices set aside by consent - Application for costs - Improvement notices issued and affirmed - Whether WorkSafe caused applicants to incur costs unnecessarily or unreasonably - Expert witness expenses - Whether extreme, special or exceptional circumstances - Application for costs dismissed

Legislation : Industrial Relations Act 1979 (WA) s 26, s 26(1)-(3), s 26(1)(a), s 27, s 27(1)(c);

  Occupational Safety and Health Act 1984 (WA) s 3, s 19, s 19(1), s 20, s 21, s 48, s 48(1), s51, s 51(5)(b), s 51(6), s 51A, s 61A    

Result : Application for costs dismissed

  Decisions of the WorkSafe Commissioner revoked and improvement notices set aside by consent

Representation:

Applicant : Mr D Pratt (of counsel) and Mr A Phillips (of counsel)

Respondent : Mr T Pontré (of counsel) and Mr D Blades (of counsel)

Cases referred to in reasons:

Anthony & Sons Pty Ltd T/A Oceanic Cruises v WorkSafe Western Australia Commissioner [2006] WAIRC 05671; (2006) 86 WAIG 3323

Bernadt v Medical Board of Australia [2013] WASCA 259

Bryn Edwards v Turner & Townsend Pty Limited [2011] WAIRC 01148; (2011) 91 WAIG 2356

Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia - Western Australian Branch (1998) 78 WAIG 1585

Cousins v YMCA of Perth [2001] WASCA 374; (2001) 111 IR 286

Dasma Environmental Pty Ltd v Environmental Protection Authority [2022] VSCA 248

Denise Brailey Pty Ltd t/a Mair & Co Maylands v Mendex (1993) 73 WAIG 26

Fewstone Pty Ltd t/a City Beach v Commissioner Lex McCulloch Worksafe WA [2015] WAIRC 00327; (2015) 95 WAIG 625

George v Rockett (1990) 170 CLR 104

GHD Pty Limited v WorkSafe Western Australia Commissioner [2021] WAIRC 00655; (2022) 102 WAIG 89

Legal Services and Complaints Committee v Young [2023] WASAT 108

Leigh Martin v Michael Maloney of Wildflower Electrical and Refrigeration Services Pty Ltd [2014] WAIRC 00363; (2019) 99 WAIG 562

Marcus John Griffiths and Angeline Griffiths trading as Midwest Top Notch Tree Services v Jeremy Freeman [2014] WAIRC 00488; (2014) 94 WAIG 803

Mario Pietracatella v W.A. Italian Club (Inc) [2001] WAIRC 03509; (2001) 81 WAIG 2532

Paul Lothar Meyer c/o Thames Legal Office v Ian Gregory Sampson [2019] WAIRC 00350; (2019) 99 WAIG 620

Pina Julia Pisconeri v Laurens & Munns incorporating Munns Nominees Pty Ltd and George Laurens Pty Ltd (1999) 79 WAIG 3187

Steve Burke Transport Pty Ltd v Toll Transport Pty Ltd t/as Toll IPEC [2017] WAIRC 00370; (2017) 97 WAIG 774

Wormald Security Australia Pty Ltd v Peter Rohan Department of Occupational Health, Safety and Welfare (1994) 74 WAIG 2

Reasons for Decision

1         For simplicity, at times these reasons refer to the respondent as WorkSafe.

2         In September 2020, a WorkSafe inspector issued Improvement Notice no 90014939 to Consolidated Pastoral Company Pty Ltd (CPC) and Improvement Notice no 90015070 to Hancock Prospecting Pty Ltd (HPPL) (Improvement Notices). The Improvement Notices said that CPC and HPPL employees are ‘exposed to a hazard, namely riding a horse without a helmet which may result in the rider falling from a horse and receiving impact to the head which could lead to serious injury or death.’ CPC and HPPL referred the Improvement Notices to the Tribunal for further review.

3         Ultimately, the parties agree that the Tribunal should order:

1 THAT the decision of the WorkSafe Western Australia Commissioner of 30 April 2021 to affirm Improvement Notice no. 90014939 is revoked.

2 THAT Improvement Notice no. 90014939 is set aside.

3 THAT the decision of the WorkSafe Western Australia Commissioner of 30 April 2021 to affirm Improvement Notice no. 90015070 is revoked.

4 THAT Improvement Notice no. 90015070 is set aside.

4         CPC and HPPL also ask the Tribunal to order that WorkSafe pay their expert witness expenses in the total sum of $118,399.02, including disbursements. WorkSafe objects to the Tribunal making an order in relation to costs in these matters.

Question to be decided

5         I must decide whether the Tribunal should order WorkSafe to pay CPC and HPPL their expert witness expenses.

Background

6         On 6 June 2020 Ms Meghan Porter was injured after she fell from a horse while riding at a station operated by CPC. She was wearing a helmet at the time. A WorkSafe inspector, Ms Julii Gaunt (Inspector), investigated the incident. Although she determined that CPC had met its obligations under the Occupational Safety and Health Act 1984 (WA) (OSH Act), the Inspector was concerned that riders at CPC stations were given a choice about whether they wore a helmet when riding horses at work. The Inspector asked Mr Ian Florence from CPC for information about discussions between him and others in the pastoral industry about the wearing of helmets on stations.

7         On 1 July 2020, the Inspector issued a prohibition notice to CPC directing it to ensure that horse riders wear equestrian helmets at all times when riding horses (CPC Prohibition Notice). That day the Inspector had a discussion with Mr Florence. He asked her if this was an industry wide action and she responded to the effect that WorkSafe was ‘seeking to bring the case before the Commissioner and would welcome an appeal from CPC’. Eight days later, the Inspector had a discussion with an employee of a subsidiary of HPPL and told him she had recently issued a prohibition notice to another agricultural company in relation to wearing equestrian helmets. She said that unless HPPL took action by 17 July 2020 about riders not wearing equestrian helmets, she would issue a prohibition notice to HPPL as well. The applicants say at that time the Inspector had not reviewed any of the subsidiary’s policies and procedures about horse riding, nor had she been to its pastoral station.

8         On 17 July 2020, the Inspector required that subsidiary to provide information about its policies and procedures in relation to horse riding at the workplace, including personal protective equipment. She had a conversation with Dr Bruce Butcher of HPPL on 24 July 2020.

9         HPPL provided information to WorkSafe on 13 August 2020. At CPC’s request, the WorkSafe Commissioner reviewed the CPC Prohibition Notice and cancelled it.

10      WorkSafe issued the CPC Improvement Notice on 2 September 2020 and the HPPL Improvement Notice on 24 September 2020. CPC and HPPL sought a review of those Improvement Notices. On 3 May 2021 the WorkSafe Commissioner affirmed both Improvement Notices. CPC and HPPL referred the matters to the Tribunal for review later that month.

11      The Tribunal was constituted by Commissioner Walkington from 10 May 2021 until 1 April 2022 when applications OSHT 4 and 5 of 2021 were re-allocated to me. Since October 2021, the parties have requested and been granted multiple extensions to the programming orders for a range of reasons.

12      Relevantly, in February 2023 the Tribunal extended the time for parties to comply with programming orders, ordering (as proposed by the applicants) that:

a. WorkSafe file witness statements and expert reports by 4pm on 27 September 2023; and

b. CPC and HPPL file witness statements and expert reports by 4pm on 27 October 2023.

13      On 7 September 2023 WorkSafe obtained its final draft expert report. On 12 September 2023 WorkSafe held a proofing session involving the expert and counsel. Three days later counsel gave the WorkSafe Commissioner written advice. On Thursday 21 September 2023 the WorkSafe Commissioner decided to concede the matter based on a draft expert report and on counsel’s advice in light of the expert report. The next day, WorkSafe’s lawyer, Mr Blades, telephoned the applicants’ lawyer, Mr Phillips, to let him know. Mr Blades left a message with a receptionist for Mr Phillips to call him back because Mr Phillips was unavailable. Monday 25 September 2023 was a public holiday in Western Australia. On Tuesday 26 September 2023, Mr Blades telephoned Mr Phillips and in effect said that WorkSafe conceded the invalidity of the Improvement Notices and would agree that they be set aside. Later that day WorkSafe wrote to CPC and HPPL attaching draft consent orders to finalise the proceedings.

14      CPC and HPPL briefed Dr Alan Pearce, Dr John Culvenor and Mr Damian Lee to provide expert reports in relation to this matter.

15      When Mr Blades telephoned Mr Phillips on 26 September 2023, Dr Pearce, Dr Culvenor and Mr Lee had been briefed an provided draft reports and attended proofing sessions with counsel and instructing solicitors. CPC and HPPL had arranged for Dr Culvenor to travel to Western Australia to visit Fossil Downs Station from 28 to 30 September 2023 and Carlton Hill Station on 3 October 2023, which subsequently occurred. On 26 September 2023 Dr Culvenor was in transit.

16      Dr Pearce and Mr Lee finalised their expert reports on 6 October 2023. Dr Culvenor finalised his expert report on 9 October 2023.

17      WorkSafe wrote to the Tribunal on 18 October 2023 and proposed that the Tribunal make orders revoking and setting aside the Improvement Notices.

18      CPC and HPPL say that they briefed experts to provide reports to comply with the programming orders in this matter, resulting in expenses to each of them of $53,573.01 including GST in expert evidence, and a further $11,253.00 in travel and related expenses for expert site visits.

Legislative framework

19      The substantive applications are each a reference to the Tribunal under s 51A of the OSH Act for a review of the Inspector’s decision to issue the Improvement Notice and the WorkSafe Commissioner’s decision to affirm the Improvement Notice.

20      Given the issue to be resolved, it is useful to set out the legislative scheme and relevant provisions.

21      The OSH Act provides that it is ‘An Act to promote and improve standards for occupational safety and health, to establish the Commission for Occupational Safety and Health, to provide for a tribunal for the determination of certain matters and claims, to facilitate the coordination of the administration of the laws relating to occupational safety and health and for incidental and other purposes’.

22      Part I of the OSH Act deals with preliminary matters, including definitions. It is clear from the objects of the OSH Act that the legislation aims to achieve safety in the workplace. Relevantly, a ‘hazard’, ‘in relation to a person, means anything that may result in injury to the person or harm to the health of the person’. ‘Practicable’ means:

3. Terms used

…

practicable means reasonably practicable having regard, where the context permits, to —

 (a) the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring; and

 (b) the state of knowledge about —

 (i) the injury or harm to health referred to in paragraph (a); and

 (ii) the risk of that injury or harm to health occurring; and

 (iii) means of removing or mitigating the risk or mitigating the potential injury or harm to health;

  and

 (c) the availability, suitability, and cost of the means referred to in paragraph (b)(iii);

23      Part II of the OSH Act contains provisions in relation the Commission for Occupational Safety and Health.

24      Part III of the OSH Act sets out general provisions relating to occupational safety and health. It defines the meaning of gross negligence and deals with general workplace duties. Division 2 outlines general workplace duties. Sections 19, 20 and 21 of the OSH Act are of central importance to health and safety in the workplace. They set out the duties of employers, employees and self-employed persons.

25      Division 3 provides that certain workplace situations are to be treated as employment and Division 4 deals with the employer’s duty to maintain safe premises, while other duties are covered in Division 5. Division 6 deals with resolution of workplace issues and refusal to work because of risk. Part IV of the OSH Act deals with safety and health representatives and committees.

26      Provisions in relation to inspectors are set out in Part V, including their appointment, functions, powers and obligations in relation to notification.

27      Part VI of the OSH Act deals with improvement and prohibition notices. Section 48 of the OSH Act provides:

48. Improvement notices, issue and effect of

(1) Where an inspector is of the opinion that any person —

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

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

  the inspector may issue to the person an improvement notice requiring the person to remedy the contravention or likely contravention or the matters or activities occasioning the contravention or likely contravention.

(2) An improvement notice shall —

(a) state that the inspector is of the opinion that the person —

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

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

  and

(b) state reasonable grounds for forming that opinion; and

(c) specify the provision of this Act in respect of which that opinion is held; and

(d) specify the time before which the person is required, to remedy the contravention or likely contravention or the matters or activities occasioning the contravention or likely contravention; and

(e) contain a brief summary of how the right to have the notice reviewed, given by sections 51 and 51A, may be exercised.

(3) A person, other than the employer, issued with an improvement notice shall forthwith give the notice, or a copy of it, to the employer, and where —

(a) under subsection (1), an improvement notice is issued to an employer; or

(b) under this subsection an improvement notice, or a copy thereof, is given to an employer,

  the employer shall cause the notice, or a copy of it, to be displayed in a prominent place at or near any workplace affected by the notice.

(3a) A person shall not remove an improvement notice displayed under subsection (3) before the requirements of that improvement notice have been satisfied.

(3b) Subsection (3a) does not apply in respect of an improvement notice that is suspended under section 51 or 51A or that has ceased to have effect.

(3c) If an improvement notice is issued —

(a) to a self‑employed person in respect of a contravention of section 21; or

(b) to a body corporate to which section 21B applies in respect of a contravention of that section,

  the person or body shall comply with subsection (3) and (3d) as if the person or body were an employer.

(3d) If an improvement notice is modified by the Commissioner under section 51(5)(b), the employer shall cause a copy of the Commissioner’s decision to be displayed with the improvement notice, or a copy of it, as required by subsection (3).

(4) Subject to sections 51 and 51A, if a person —

(a) is issued with an improvement notice; and

(b) does not comply with the notice within the time specified in it,

  the person commits an offence.

(5) A person issued with an improvement notice commits an offence if the Commissioner is not notified forthwith upon the requirements of the improvement notice being satisfied.

(6) If a person contravenes subsection (3), (3a), (3c) or (3d), the person commits an offence.

[Section 48 inserted: No. 43 of 1987 s. 13; amended: No. 30 of 1995 s. 35; No. 51 of 2004 s. 94 and 107.]

28      In accordance with s 51 of the OSH Act, the person issued with an improvement notice may refer it for review to the WorkSafe Commissioner:

51. Review of notices by Commissioner

(1) An improvement notice or prohibition notice may, in accordance with this section, be referred for review to the Commissioner by —

(a) the person issued with the notice; or

(b) the employer (if any) of the person issued with the notice.

(2) A reference under subsection (1) may be made in the prescribed form —

(a) in the case of an improvement notice, within the time specified in the notice as the time before which the notice is required to be complied with;

(b) in the case of a prohibition notice, within 7 days of the issue of the notice or such further time as may be allowed by the Commissioner.

[(3), (4) deleted]

(5) On the reference under this section of an improvement notice or a prohibition notice for review, the Commissioner shall inquire into the circumstances relating to the notice and may —

(a) affirm the notice; or

(b) affirm the notice with such modifications as seem appropriate; or

(c) cancel the notice,

  and, subject to section 51A, the notice shall have effect or, as the case may be, cease to have effect, accordingly.

(6) The Commissioner shall give to the person that referred the matter for review, and to any other person that was entitled under subsection (1) to refer the notice for review, a notice in writing of the decision on the reference and of the reasons for that decision.

(6a) In dealing with a reference for the review of a prohibition notice the Commissioner may refer to an expert chosen by the Commissioner such matters as appear appropriate and may accept the advice of that expert.

(7) Pending the decision on a reference under this section for the review of a notice, the operation of the notice shall —

(a) in the case of an improvement notice, be suspended; and

(b) in the case of a prohibition notice, continue, subject to any decision to the contrary made by the Commissioner.

 [Section 51 inserted: No. 43 of 1987 s. 13; amended: No. 30 of 1995 s. 37; No. 51 of 2004 s. 97 and 103.]

29      Where a person is not satisfied with the WorkSafe Commissioner’s decision under s 51(6) of the OSH Act, that person may refer the matter to the Tribunal for further review in accordance with s 51A of the OSH Act:

51A.  Review of notices by Tribunal

(1) A person issued with notice of a decision under section 51(6) may, if not satisfied with the Commissioner’s decision, refer the matter in accordance with subsection (2) to the Tribunal for further review.

(2) A reference under subsection (1) may be made within 7 days of the issue of the notice under section 51(6).

(3) A review of a decision made under section 51 shall be in the nature of a rehearing.

(4) The Tribunal shall act as quickly as is practicable in determining a matter referred under this section.

(5) On a reference under subsection (1) the Tribunal shall inquire into the circumstances relating to the notice and may —

(a) affirm the decision of the Commissioner; or

(b) affirm the decision of the Commissioner with such modifications as seem appropriate; or

(c) revoke the decision of the Commissioner and make such other decision with respect to the notice as seems fit,

  and the notice shall have effect or, as the case may be, cease to have effect accordingly.

[(6) deleted]

(7) Pending the decision on a reference under this section, irrespective of the decision of the Commissioner under section 51, the operation of the notice in respect of which the reference is made shall —

(a) in the case of an improvement notice, be suspended; and

(b) in the case of a prohibition notice, continue, subject to any decision to the contrary made by the Tribunal.

 [Section 51A inserted: No. 30 of 1995 s. 38; amended: No. 51 of 2004 s. 64, 69(1)‑(3) and 98; No. 36 of 2009 s. 11.]

30      Part VIA of the OSH Act deals with the office and jurisdiction of safety and health magistrates. Part VIB is about the Occupational Safety and Health Tribunal, including its constitution, jurisdiction, practice, procedure and appeals, as well as its powers to conciliate.

31      Part VII of the OSH Act relates to legal proceedings. Part VIII of the OSH Act is headed ‘Miscellaneous’. It includes provisions in relation to discrimination and codes of practice.

32      Section 61A of the OSH Act deals with the Tribunal’s review of certain decisions made by the WorkSafe Commissioner.

33      Of material relevance to this matter, under s 51I of the OSH Act, s 26(1) to (3) and s 27 of the Industrial Relations Act 1979 (WA) (IR Act) apply to the Commission when sitting as the Tribunal.

34      Relevantly s 26(1)(a) of the IR Act provides:

26. Commission to act according to equity and good conscience

(1) In the exercise of its jurisdiction under this Act the Commission —

(a) must act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms; and

35      Section 27(1)(c) of the IR Act provides:

27. Powers of Commission

(1) Except as otherwise provided in this Act, the Commission may, in relation to any matter before it —

…

(c) order any party to the matter to pay to any other party such costs and expenses including expenses of witnesses as are specified in the order, but so that no costs are allowed for the services of any legal practitioner, or agent; and

CPC and HPPL’s case

36      CPC and HPPL rely on an affidavit of Mr Alexander Phillips and its 33 exhibits.

37      In essence, the applicants argue that WorkSafe’s ‘belated capitulation’ in this case shows that it accepts that it cannot succeed in the proceedings on the basis of the evidence or materials available to either the Inspector when she issued the Improvement Notices or the WorkSafe Commissioner when he affirmed them. They say this means that they did not have reasonable grounds for issuing or affirming the Improvement Notices.

38      The applicants made submissions about the legislative framework in relation to improvement notices. They argue that s 19(1) of the OSH Act does not require the employer to eliminate all hazards in the work environment, but rather to eliminate hazards where it is reasonably practicable to do so having regard to the considerations in s 3 of the OSH Act.

39      The applicants submit that an inspector may issue an improvement notice if she has formed an opinion on reasonable grounds that a person is contravening any provision of the OSH Act, or has contravened the OSH Act in circumstances that make it likely that the contravention will continue or happen again. CPC and HPPL say an inspector will only have reasonable grounds for forming an opinion where the objective facts known to the inspector and on which they in fact rely are capable of inducing that opinion in a reasonable person: George v Rockett (1990) 170 CLR 104 at 112 and Bernadt v Medical Board of Australia [2013] WASCA 259 at [172] – [174] per Newnes JA (Murphy JA agreeing at [210]).

40      In relation to orders for costs, CPC and HPPL argue that construction of s 27(1)(c) of the IR Act involves considering the text of the provision, taking into account its context in the statute and the purpose or object underlying it, to determine the construction that best serves the relevant statutory purpose. CPC and HPPL say that courts of appeal warn of ‘the dangers of applying language derived from case law as a substitute for, or gloss, on the language of a statute.’ They say there is no room to place a judicial gloss on the meaning of statutory words, or applying an alternative formulation of a statutory test derived from the factual circumstances of a particular case in substitution for the language of the statute, and says that is so ‘even where the application of an alternative formulation of a statutory test produced a correct outcome having regard to the factual situation in which it was initially formulated and applied’: Dasma Environmental Pty Ltd v Environmental Protection Authority [2022] VSCA 248 at [86].

41      CPC and HPPL say although s 27(1)(c) of the IR Act expressly precludes the award of costs of legal practitioners or an agent of a party, it expressly permits the award of other costs and expenses to a party. They submit that the Tribunal’s jurisdiction to award other costs and expenses in matters under the OSH Act is ‘unconfined save that it must be exercised consistently with the principles enunciated in s 26, IR Act and having regard to the objects of the OSH Act.’

42      Noting that s 26 and 27 of the IR Act do not refer to costs only being awarded in ‘extreme cases’, CPC and HPPL argue:

To the extent that cases applying s 27, IR Act to proceedings under the OSH Act have held that costs and expenses should only be awarded in “extreme circumstances”, those cases are plainly wrong and should not be followed. There is no justification for substituting a test derived from case law for the language of the statute and no such limitation is to be found in the language of the statute.

43      The applicants say during her conversation with Dr Bruce Butcher of HPPL on 24 July 2020 the Inspector in effect said:

a. she did not look at medical evidence or injury-based statistics;

b. she had no idea of the number of fatal accidents involving horse riders not wearing helmets;

c. she was not aware of any cases of horse-related deaths since one in NSW in 2004; it was just her opinion that there was a likelihood of death or serious injury from not wearing equestrian helmets;

d. if she considered things like data or statistics, then she would not get any notices issued under the OSH Act, which is what she is paid to do; and

e. she would welcome being challenged in Court.

44      In essence, CPC and HPPL say the Inspector issued the Improvement Notices based on her ‘unsubstantiated, overly zealous attitude’ and ‘cavalier and reckless…heavy-handed approach to regulation’. They argue that the Inspector did not have reasonable grounds for issuing the Improvement Notices and nor did the WorkSafe Commissioner for affirming them. When reviewing an improvement notice, the WorkSafe Commissioner must look at the circumstances of the improvement notice and determine whether there are reasonable grounds for issuing it. Public interest and public policy considerations have no role to play in doing so.

45      The applicants say:

 This is an instance of the respondent through an overly zealous inspector absent any relevant evidence seeking to usurp the legislative function of the Western Australian Parliament by effectively purporting to legislate by stealth the compulsory wearing of equestrian helmets, when Parliament itself has never sought to do that (unlike, for example, the compulsory wearing of motor cycle helmets).

 That of itself, should be sufficient to warrant an award of the substantial costs and expenses that the applicants had been forced to incur in obtaining their own expert evidence in support of their position.

46      The applicants argue that the Tribunal should find that WorkSafe:

a. sought to implement a policy requiring employers to mandate equestrian helmet-wearing in the pastoral industry;

b. sought to run these proceedings as a test case to support that policy; and

c. never had a proper evidentiary foundation to support that policy, and when WorkSafe finally obtained expert evidence, it was forced to capitulate and offer to consent to the improvement notices being set aside.

47      In effect, CPC and HPPL criticise WorkSafe for taking three years ‘to obtain proper expert evidence and counsel’s opinion on that evidence’ and argues that it is necessarily implicit in WorkSafe’s submissions that WorkSafe ‘received advice to the effect that it could not succeed on the basis of the materials that were before the Inspector or the Commissioner’, and it is unexplained why, and unreasonable that, WorkSafe took three years to reach that point.

48      CPC and HPPL say there is nothing to prevent WorkSafe issuing similar notices in the pastoral industry in future, and not awarding costs of expert evidence allows WorkSafe to weaponize the costs of challenging improvement notices as a means of enforcing its policy mandate, even where there is no proper evidentiary foundation for the policy mandate.

49      CPC and HPPL submit that to the extent the Tribunal can apply Denise Brailey Pty Ltd t/a Mair & Co Maylands v Mendex (1993) 73 WAIG 26 (Brailey v Mendex), the Tribunal must take into account the different statutory context under the OSH Act, in particular:

a. the general policy of encouraging people to take their disputes to the Commission is not directly applicable under the OSH Act. It is not the same as where an individual employee is not to be discouraged from making a claim;

b. even if an inspector has reasonable grounds on which to issue a notice, the inspector is not compelled to issue a notice; and

c. where a notice has been referred and reviewed, the WorkSafe Commissioner is not obliged to defend proceedings.

50      While CPC and HPPL say there may be a public interest in promoting occupational health and safety, they say the WorkSafe Commissioner does not have to defend review proceedings in the public interest, which is very different to vocational regulation proceedings (for example in Legal Services and Complaints Committee v Young [2023] WASAT 108, where once the regulator has reached a particular opinion, the regulator must bring proceedings). In this matter, the Inspector has a discretion about whether to issue a notice, even where she has a view on reasonable grounds that a notice could be issued. Further, the WorkSafe Commissioner can exercise other enforcement options, and is not obliged to affirm the notice or to defend the proceedings reviewing the notice.

51      CPC and HPPL argue that Cousins v YMCA of Perth [2001] WASCA 374 is an industrial relations case, and ‘the language used there is “special circumstances” ’, while the test is the discretion under s 27(1)(c) of the IR Act, which is to be exercised in accordance with s 26 of the IR Act. CPC and HPPL submit that the question for the Tribunal is whether it is just and equitable that WorkSafe be ordered to pay some or all of CPC and HPPL’s expert witness expenses. This involves consideration of whether WorkSafe has caused CPC and HPPL to incur costs unnecessarily or unreasonably in defending these proceedings for as long as it did. They accept that the ‘relevant focus of attention should be on what was before the WorkSafe Commissioner.’

52      The applicants say it was reasonable to finalise their expert reports even after WorkSafe said it intended to concede the proceedings because:

a. each of the experts had already provided draft reports and attended proofing sessions with counsel, and one of the witnesses was already in transit for site visits;

b. proceedings remained on foot and programming orders had not been vacated at that time; and

c. there is nothing to stop WorkSafe issuing future notices about the same issue. WorkSafe has not withdrawn its safety alert about station hands riding horses without wearing helmets.

53      CPC and HPPL argue that equity, good conscience, the substantial merits of the case, the interests of the applicants and the employer community all favour the award of the costs of expert evidence in this matter, which amounted to $53,573.01 each for CPC and HPPL.

WorkSafe’s case

54      WorkSafe relies on an affidavit of Mr David Victor Blades and its exhibits.

55      In essence, WorkSafe says the Tribunal should not make an order for expert witness expenses because:

a. contrary to the applicants’ submissions, such costs are only awarded in extraordinary cases;

b. the Inspector and the WorkSafe Commissioner plainly had reasonable bases to issue and uphold the Improvement Notices; and

c. the circumstances of this case are not extraordinary and do not justify the award of expenses.

56      WorkSafe says the principal authority on the award of witness costs under s 27(1)(c) of the IR Act is the decision of the Full Bench in Brailey v Mendex. In that case, the President’s reasons indicate that the ‘generally policy in industrial jurisdictions is that costs ought not be awarded, except in extreme cases’, because any application must be determined under s 26 of the IR Act, which requires the Tribunal to act ‘according to equity, good conscience and the substantial merits of the case’, and ‘part of that equity and good conscience includes what is settled law in industrial matters that costs ought not be awarded, except in extreme cases, (eg) where proceedings have been instituted without reasonable cause…’ (at 27). WorkSafe says the Commission has consistently endorsed that approach as reflecting settled law, and the reasoning in Brailey v Mendex is equally applicable to the Tribunal, because s 27(1)(c) of the IR Act is picked up by the OSH Act.

57      WorkSafe points to Anthony & Sons Pty Ltd T/A Oceanic Cruises v WorkSafe Western Australia Commissioner [2006] WAIRC 5671; (2006) 86 WAIG 3323 and Fewstone Pty Ltd t/a City Beach v Commissioner Lex McCulloch Worksafe WA [2015] WAIRC 327; (2015) 95 WAIG 625 and says a consistent stream of authority in the Tribunal has also said that costs will not be awarded except in exceptional cases. WorkSafe submits that the Industrial Appeal Court has also endorsed the proposition that ‘it is only in special circumstances that costs will be ordered’ and that ‘the normal practice [is] that costs should not generally be awarded’: Cousins v YMCA of Perth at [92]. Essentially, WorkSafe says the Tribunal cannot depart from this binding precedent. WorkSafe goes on to argue that even if the Tribunal could depart from it, the Tribunal should reject CPC and HPPL’s construction arguments.

58      WorkSafe submits that given the public interest character of the Inspector’s and WorkSafe Commissioner’s power under review, the regulator should not be inappropriately deterred from taking reasonable regulatory action in the public interest, nor from defending an appeal against such action, because of the potential for an adverse costs order. By contrast, WorkSafe submits that it may well be appropriate for a costs order to be made where the regulator behaves unreasonably in taking such action or some other exceptional circumstances arise. WorkSafe says that position is consistent with the approach taken by the State Administrative Tribunal in relation to the award of legal costs against regulators more generally. Namely, that costs will only be awarded against such bodies as an ‘exceptional step, which will not be taken other than in the clearest of cases’: Legal Services and Complaints Committee v Young at [57], ‘because of the public policy consideration that the prospect of a costs order may dissuade or inhibit regulatory bodies from commencing proceedings that should be commenced and maintained in the public interest, despite the fact that success cannot be guaranteed. Consequently, the Tribunal’s general approach is that ‘unless it can be demonstrated that an application made by a vocational regulatory body lacked any reasonable basis or was not made in good faith, costs should not be awarded against [that body] simply because the application was not successful’: Legal Services and Complaints Committee v Young at [42].

59      Essentially, WorkSafe argues that the Tribunal should make an order for costs or expenses rarely and in clear cases, such as where there has been an unreasonable regulatory action taken, or an appeal has been unreasonably defended.

60      WorkSafe says the Tribunal must determine whether there was a reasonable basis for the commencement of the proceedings, and for their continuation until conceded, which involves consideration of the available evidence. WorkSafe says this should not become a de facto trial of the matter and a complete evidentiary picture of the case that would have been advanced may not be available on the costs application. Accordingly, the State Administrative Tribunal has said that a high bar of satisfaction applies before it is minded to draw a conclusion that a proceeding was instituted or continued without reasonable cause: Legal Services and Complaints Committee v Young at [45]. WorkSafe says those observations apply equally to this matter.

61      Fundamentally, WorkSafe disagrees that the Inspector and the WorkSafe Commissioner did not have reasonable grounds on which to issue and affirm the Improvement Notices.

62      WorkSafe submits that the Inspector and the WorkSafe Commissioner acted reasonably. It says it is clear that they both had ample and reasonable grounds to issue and uphold the Improvement Notices. It is not in dispute that:

a. under s 48 of the OSH Act, an inspector may issue an improvement notice where she forms an opinion on reasonable grounds that a person is contravening a provision of the OSH Act, or has done so in circumstances that make it likely that the contravention will continue or be repeated; and

b. under s 19 of the OSH Act, an offence arises where an employer fails to provide and maintain a working environment in which, as far as practicable, employees are not exposed to hazards.

63      WorkSafe says the materials before the Tribunal show the bases for the Inspector’s actions. The CPC Improvement Notice showed an opinion that a breach had occurred, which was likely to continue or be repeated. Essentially, the bases for Inspector’s opinion was:

a. riding horses poses a significant hazard because it involves animals which may act independently of a rider’s direction and because riders are 2.5 – 3 meters above the ground;

b. riders may fall from horses. When that occurs, their head may strike the ground with force;

c. helmets may give some but not complete protection to a rider’s head in the case of a fall, so implicitly there are a practicable measure to mitigate the identified hazard; and

d. some riders on Carlton Hill were not wearing helmets while riding.

64      WorkSafe says that to come to her opinion about those matters, the Inspector relied on:

a. her own industry experience;

b. research she had done into the use of helmets while riding horses, including data from the Australia Institute of Health and Welfare and the National Coronial Information System;

c. a review of the policy in operation at Carlton Hill; and

d. cases determined in other jurisdictions about failure to enforce the wearing of helmets while riding.

65      WorkSafe submits those considerations plainly provide a reasonable basis for the issue of the Improvement Notice.

66      In relation to HPPL, WorkSafe says the Improvement Notice showed an opinion that a breach had occurred, which was likely to continue or be repeated. WorkSafe says there is an equally obvious basis for that opinion evident from the materials before the Tribunal:

a. riding a horse without a helmet may result in a fall and head impact, leading to serious injury or death; and

b. two employees had recently fallen from horses while mustering at Fossil Downs without wearing helmets.

67      To come to her opinion about those matters, WorkSafe says the Inspector relied on:

a. her own industry experience;

b. research she had done into the use of helmets while riding horses; and

c. a review of the policy in operation at Fossil Downs.

68      WorkSafe says the WorkSafe Commissioner plainly had a reasonable basis to uphold each notice, which is disclosed in the reasons he provided in each matter, being:

a. incidents of employees falling from a horse and sustaining serious injuries;

b. the well-known risks of riding without a helmet;

c. research confirming the hazards of riding without a helmet;

d. Australian Standards recommendations;

e. policy adopted at other comparable cattle stations; and

f. statistics relating to horse-related injuries.

69      According to WorkSafe, these materials plainly provide a reasonable basis for the WorkSafe Commissioner’s actions. Further, WorkSafe says it is significant that CPC and HPPL have not elaborated on why they say the WorkSafe Commissioner’s decisions were unreasonable. Given the WorkSafe Commissioner’s decisions overtook that of the Inspector, enlivened the appeal to the Tribunal, and led to the expenses incurred by CPC and HPPL, WorkSafe says a failure to explain why the WorkSafe Commissioner’s decisions were unreasonable is fatal to the costs application.

70      WorkSafe says each of the other matters CPC and HPPL say show unreasonableness are insufficient to enliven an award of costs, whether considered in isolation or together:

a. The applicants’ contention that the Inspector said she did not look at medical evidence or injury statistics, but relied on her own opinion to form the view that there was a risk of serious injury from not wearing a helmet – WorkSafe says detailed research of that kind was not necessary in the circumstances to come to a reasonable opinion that the Improvement Notices should be issued. But in any event, the Inspector had a level of expertise in relation to workplace safety and had done independent research, including considering data from the Australian Institute of Health and Welfare and the National Coronial Information System. The circumstances involved obvious hazards and simple ameliorating protective equipment, which is sufficient to reach the threshold of a reasonable opinion;

b. The applicants’ contention that the Inspector ‘welcomed’ an appeal of both matters – WorkSafe says there is nothing remotely improper. A right of appeal arises from the issue of an infringement notice and the upholding of that notice by the WorkSafe Commissioner. There is no inference of improper purpose open from an inspector ‘welcoming’ a challenge to her decision under those rights of appeal. Such a statement is consistent with the innocuous proposition that the Inspector did not oppose the exercise of those statutory rights. Further, WorkSafe says that construction is consistent with the Inspector’s file note of the conversation with the CPC representative on 1 July 2020, in which she says ‘I advised him that the notice represented my opinion, and that the company had an avenue to challenge the notice.’ WorkSafe says that no aspect of the allegation that the Inspector acted ‘in bad faith, without evidence, for improper purposes as a matter of a personal vendetta etc’ is backed by sufficient admissible or credible evidence.

c. The applicants’ contention that WorkSafe improperly delayed obtaining expert evidence about the Improvement Notices – WorkSafe says the Tribunal’s programming orders at the relevant time required WorkSafe to file any expert evidence by 27 September 2023. WorkSafe’s expert final draft report was obtained on 7 September 2023, which was well before the procedural milestone. An adverse inference of delay cannot arise from obtaining expert material before the date by which it was to be filed.

d. The applicants’ contention that it is necessarily implicit in WorkSafe’s application to discontinue that ‘the Inspector did not have reasonable grounds for issuing the Improvement Notices and the Commissioner did not have reasonable grounds for affirming them’ – WorkSafe says that reasoning is erroneous. A regulator’s decision to withdraw a proceeding is not, in and of itself, an indication that there was no reasonable basis for commencing the proceeding, and a late withdrawal may not be unreasonable if there is a change in circumstances which means that proceedings should not continue. Regulators are expected to evaluate a case up until the time of hearing: Legal Services and Complaints Committee v Young at [45]. The question for the Inspector was whether on the materials available to her at the time, she was of the opinion that an offence was being committed or would continue. WorkSafe says there was ample material for that purpose. There was likewise ample material for the WorkSafe Commissioner to base his opinion on, at the point in time. After those decisions, WorkSafe obtained expert evidence and counsel’s opinion on that evidence. Instructions to concede were then given in a timely manner. WorkSafe says an inference arises that the content of the expert evidence was critical to the decision made by it, and altered the view that had previously been taken about the prospects and public interest in the proceedings at that time. WorkSafe argues that its actions in altering its decision and taking advice in light of new expert evidence was entirely appropriate. It does not enliven a costs order.

71      WorkSafe says this is an unexceptional, orthodox case. Litigation proceeded, the evidential basis changed and WorkSafe appropriately responded. In effect, WorkSafe submits that the timing of its expert evidence and counsel’s advice about the expert evidence was compatible with the Tribunal’s programming orders.

72      WorkSafe says the same policy applies to this matter as it did in Legal Services and Complaints Committee v Young regardless of whether the regulator is obliged to bring or defend proceedings. If an inspector comes to the reasonable opinion that an offence has been committed, it should not be any part of the inspector’s consideration that if the matter is appealed to a tribunal and does not succeed, then a costs order may flow. That policy principle applies whether or not there is an obligation to bring proceedings.

73      Finally, WorkSafe argues that the quantum of costs sought is excessive, and if the Tribunal were minded to order costs, the full amount sought should not be ordered. This is because WorkSafe says the materials show that CPC and HPPL continued to incur expert witness costs after being informed of WorkSafe’s intention to concede the proceedings, and after being provided a minute of proposed consent orders giving effect to that result. WorkSafe says Mr Phillips’ affidavit states:

a. on 26 September 2023 he was told by WorkSafe’s solicitor that the proceedings would be conceded, and received a minute of proposed orders to that effect;

b. on 28 – 30 September 2023, Dr Culvenor did a site visit of Fossil Downs;

c. on 3 October 2023, Dr Culvenor did a site visit of Carlton Hill;

d. on 6 October 2023, Dr Pearce and Mr Lee finalised their expert reports; and

e. on 9 October 2023, Dr Culvenor finalised his report.

74      Even if costs were available and awarded, WorkSafe says even allowing for the applicants’ expert being in transit, any costs order should not include that portion of the costs referrable to this work done after it was clear that the proceedings would be conceded. WorkSafe says CPC and HPPL could have dealt with any concern about the Tribunal not making the consent order sought by applying to postpone the procedural milestones, pending resolution of the proposed consent orders by the Tribunal. WorkSafe said it was not apparent to it that expensive expert evidence was in train. Had it been aware, it would have consented to an order extending the date by which expert evidence was due.

75      WorkSafe submits that the legal basis for the costs application is contrary to the established case law of the Tribunal and the binding case law of the Supreme Court. Further, it says CPC and HPPL have not made out their asserted factual basis for the application (in the form of unreasonable conduct by WorkSafe). WorkSafe argues that the Tribunal should find that the Improvement Notices were reasonably issued and proceedings were simply discontinued following the receipt of new expert evidence. WorkSafe says the Improvement Notices should be set aside by consent, but the costs application should be dismissed.

Consideration

76      Clearly the Tribunal has the power to make an award for costs and expenses, including witness expenses, under s 27(1)(c) of the IR Act. In exercising that power, the Tribunal is bound by s 26(1) of the IR Act to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms. It is not in dispute that the power in s 27(1)(c) of the IR Act must be exercised according to the circumstances of the case.

77      In making this decision, I am conscious that the full substantive case is not before the Tribunal. Consistent with the reasoning of President Pritchard in Legal Services and Complaints Committee v Young, a broad brush approach is appropriate and clear evidence is required before the Tribunal could conclude that WorkSafe acted unreasonably or in the absence of good faith. Further, I consider that the Tribunal should take a cautious approach when deciding whether to order costs.

78      For the reasons that follow, I do not consider that this case involves extreme, special or exceptional circumstances that would justify an order for costs. Ultimately, I am not persuaded that WorkSafe caused CPC and HPPL to incur the costs unnecessarily or unreasonably. I do not consider that it would be in accordance with equity and good conscience to order that WorkSafe pay any of the applicants’ witness expenses.

Are extreme, special or exceptional circumstances required?

79      The parties disagree about whether costs should only be awarded in extreme, special or exceptional circumstances.

80      In Cousins v YMCA Perth, three judges of the Supreme Court sitting as the Industrial Appeals Court held that it is only in special circumstances that costs will be ordered, and that the normal practice is that costs should not generally be awarded (at [92]). In the unanimous Full Bench decision Brailey v Mendex, the President said ‘The general policy in industrial jurisdictions is that costs ought not to be awarded, except in extreme circumstances… The application, too, must be determined under s 26 of the Act. However, part of that equity and good conscience includes what is settled law in industrial matters that costs ought not to be awarded, except in extreme cases, (eg) where proceedings have been instituted without reasonable cause…’ at 27. Since then, this Commission has consistently applied that approach (see for example Full Bench decisions Paul Lothar Meyer c/o Thames Legal Office v Ian Gregory Sampson [2019] WAIRC 00350; (2019) 99 WAIG 620, Mario Pietracatella v W.A. Italian Club (Inc) [2001] WAIRC 03509; (2001) 81 WAIG 2532, Pina Julia Pisconeri v Laurens & Munns incorporating Munns Nominees Pty Ltd and George Laurens Pty Ltd (1999) 79 WAIG 3187, Marcus John Griffiths and Angeline Griffiths trading as Midwest Top Notch Tree Services v Jeremy Freeman [2014] WAIRC 00488; (2014) 94 WAIG 803, Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia - Western Australian Branch (1998) 78 WAIG 1585, and Commission decisions Leigh Martin v Michael Maloney of Wildflower Electrical and Refrigeration Services Pty Ltd [2014] WAIRC 00363; (2019) 99 WAIG 562, Bryn Edwards v Turner & Townsend Pty Limited [2011] WAIRC 01148; (2011) 91 WAIG 2356 and Steve Burke Transport Pty Ltd v Toll Transport Pty Ltd t/as Toll IPEC [2017] WAIRC 00370; (2017) 97 WAIG 774).

81      Indeed, this Tribunal has also consistently held that costs will only be awarded in extreme or exceptional cases (see for example Anthony & Sons Pty Ltd T/A Oceanic Cruises v WorkSafe Western Australia Commissioner and Fewstone Pty Ltd t/a City Beach v Commissioner Lex McCulloch Worksafe WA).

82      I have taken into account that the Inspector is not compelled to issue an improvement notice even if she has reasonable grounds, and the WorkSafe Commissioner is not obliged to affirm the improvement notice or defend proceedings. In relation to the different statutory contexts of the OSH Act and the IR Act, I consider that analogous to parties not being dissuaded from pursuing their industrial matters in the Commission, the regulator should not be dissuaded from issuing or affirming notices, or defending proceedings, where there is a reasonable basis to do so, because of the risk of an adverse costs order. More generally, as in industrial cases, parties to occupational safety and health matters should not be dissuaded from access to the Tribunal (regulator or otherwise).

83      I consider that the Tribunal is bound by the reasoning in Cousins v YMCA Perth and Brailey v Mendex, and costs should only be awarded in extreme or special circumstances. But even if I am wrong about that, the outcome in this case would be the same for the reasons that follow.

Did WorkSafe cause the applicants to incur the costs unnecessarily or unreasonably?

84      Ultimately, in all the circumstances I do not consider that WorkSafe caused CPC and HPPL to incur the costs sought unnecessarily or unreasonably.

85      On what is before me, I cannot conclude that there was no reasonable basis for the Improvement Notices, that WorkSafe’s case would fail or was so obviously untenable that it could not possibly succeed. I accept WorkSafe’s submissions set out from [62] to [69] above and find that there were ample reasonable grounds for issuing and affirming the Improvement Notices.

86      I do not agree that the Inspector’s decision to issue the Improvement Notices ‘was based on nothing more than her unsubstantiated, overly zealous attitude to what she, absent any medical evidence or injury-based statistics, coupled with her cavalier and reckless attitude of “challenge me in Court if you don’t like it”, heavy-handed approach to regulation, wanted to see imposed.’

87      The evidence before me does not support a finding that the Inspector acted in bad faith or for an improper purpose or personal vendetta. CPC and HPPL had a right of appeal under statute. Broadly, the Inspector’s statements were consistent with that right. I cannot find that the Inspector goaded the applicants to refer the matters to the Tribunal, or otherwise acted improperly.

88      On the material before the Tribunal, it appears that the Inspector issued the Improvement Notices and the WorkSafe Commissioner affirmed them, in circumstances that included:

a. There was a horse-riding incident at a CPC station involving a rider falling from a horse and receiving a head injury;

b. The Inspector discussed that incident with CPC’s Workplace Health and Safety Manager, and over the course of two weeks investigated the incident, ‘seeking clarity on the CPC horse handling and rider competence assessment policies’;

c. As part of her investigation, the Inspector sent a long email dated 26 June 2020 to the Workplace Health and Safety Manager explaining why she was concerned about the safety risk of horse-riders not wearing helmets at the workplace, including the recent head injury received by a horse-rider at a CPC station, an overview of the statistics of horse-related incidents, information from other horse-related industries, and two previous matters before occupational safety and health tribunals that related to the death of horse-riders on cattle stations (at least one of whom was not wearing a helmet);

d. The Inspector asked HPPL for information about the policies and procedures in relation to horse-riding by employees, including about personal protective equipment; and

e. In the improvement notice the subject of OSHT 4 of 2021, the Inspector explained that ‘based on [her] industry experience and [her] research into the use of equestrian safety helmets during horse related activities, [she has] formed the opinion that the company has failed to provide a working environment where employees are not exposed to the hazard and it would be practicable for CPC to require all employees to wear a helmet at all times whilst riding a horse in the workplace’.

89      The WorkSafe Commissioner’s reasons for affirming the Improvement Notices are set out in detail in his letters to the applicants dated 30 April 2021 affirming the Improvement Notices, which were attached to HPPL’s Form 6 and CPC’s Form 6 referring the matters to the Tribunal. Across several pages, the WorkSafe Commissioner sets out the basis on which he formed the view that:

a. the Inspector formed her opinion under s 48(1) of the OSH Act to issue the Improvement Notices on reasonable grounds; and

b. that there were reasonable grounds to affirm the Improvement Notice.

90      In earlier correspondence to CPC dated 10 December 2020 and to HPPL dated 8 January 2021, the WorkSafe Commissioner confirmed that he would take into account CPC’s 16 page Statement of Grounds and Particulars and 230 pages of annexures, and HPPL’s 26 page Statement of Grounds and Particulars and 469 pages of annexures, when making his decision.

91      In his 30 April 2021 letter to CPC, the WorkSafe Commissioner states:

…

I have considered all of the circumstances relating to this notice, including the submissions put forward by CPC in your email correspondence dated 23 October 2020, which included:

• Statement of Grounds and Particulars ; and

• Annexures A to R of that document.

I have made a decision under s51(5)(b) of the OSH Act to affirm the notice with modifications.

Reasons for Decision

I am of the view that CPC have contravened s19(1) in circumstances that make it likely the contravention will continue or be repeated. Namely, CPC have failed to, so far as is practicable, ensure that employees are not exposed to the hazard of riding a horse without a helmet in the workplace.

I have formed this opinion taking into account all of the circumstances in this matter, including the following considerations:

1. The incident last year where a junior employee at Carlton Hill Station fell off a horse while wearing a helmet and sustained a serious head injury. This incident demonstrates horses are at times unpredictable, and a helmet is a further practicable measure that can reduce the impact to the rider's head;

2. The risks of riding a horse without a helmet are well-known and any employee, even an experienced employee, engaging in this type of work activity is at risk of serious injury if they fall off a horse;

3. Inspector Gaunt has provided me with publicly available information from agencies across Australia, as well as industry and sporting bodies, which confirms the hazards associated with riding a horse without a helmet in any workplace. In particular I refer you to:

• WorkSafe Victoria's Guidebook for Horse Stables and Track Riding Safety (2018);

• WorkSafe Queensland - Horse Handling, WorkSafe Queensland Horse Riding Schools, Trail Riding Establishments and Horse Riding Establishments Code of Practice (2002);

• WorkSafe Queensland - Horse Handling Fatality Safety Alert (April 2020);

• SafeWork South Australia Farmer's Guidebook;

• WorkSafe NSW Code of Practice for when New or Inexperienced Riders Interact with Horses (February 2017);

• Australian Horse Industry Council Code of Practice for the Horse Industry (Oct 2009);

• AS/NZ 3838:2006;

• Australian Centre For Agricultural Health and Safety - Cattle Handling Safety - a practical guide (2005, revised 2015); and

• WorkSafe New Zealand - Riding Horses on Farms (June 2014).

4. Overall, the consistent recommendation is that wearing an AS/NZ3838 approved helmet at all times whilst riding a horse is a further reasonably practicable control measure that reduces the risk of employees suffering a head injury, or a more serious head injury, due to a fall off a horse or being kicked by a horse;

5. WorkSafe WA issued Safety Alert 06/2020 on 17 September 2020, which outlined the need for all riders to wear helmets in the workplace. The safety alert also provides tips for dealing with heat stress, and outlines the availability of safety approved ventilated riding helmets;

6. Inspector Gaunt has advised me that in her recent discussions with other stations in Western Australia, some stations have already implemented the policy that all employees be required to wear a helmet in the workplace at all times whilst riding a horse;

7. Overall, I note that CPC do have some extensive workplace health and safety controls in place as outlined in your "Statement of Grounds and Particulars" and annexures. These controls do go some way to protecting your employees from horse related accidents. However, a hazard still exists and it is reasonably practicable for CPC to ensure all employees are provided with, and are required to wear an Australian Standards approved equestrian safety helmet at all times while riding a horse in the workplace as a further practicable control measure to protect them so far as is practicable from the hazard.

I am therefore of the view that the Inspector has formed her opinion under section 48(1) to issue the improvement notice on reasonable grounds. I have made a decision to affirm and modify the improvement notice under s51(5), with the modification being that the requirement date for compliance with the notice is to be 18 June 2021

…

92      The WorkSafe Commissioner’s letter to HPPL is almost identical, except he refers to the submissions put forward by HPPL and at paragraph 1. he refers instead to an ‘incident last year where an employee at Fossil Downs Station station [sic] fell off a horse while not wearing a helmet and sustained a serious injury to his neck.’

93      There is nothing particularly extreme or special about the circumstances in which the Inspector issued the Improvement Notices and the WorkSafe Commissioner affirmed them. Further, in circumstances where the parties may rely on evidence at the hearing that was not before the decision-maker at the time the decision being appealed was made, I cannot accept the applicants’ submission that ‘it is necessarily implicit in the respondent’s belated capitulation that the respondent also accepts that it cannot succeed in these proceedings on the basis of the evidence or other material that was available to:

a. the Inspector at the time of issuing the Improvement Notices; and/or

b. the WorkSafe Commissioner at the time of affirming them.’

94      It does not necessarily follow that conceding the proceedings, having considered an expert report and counsel’s advice in light of that report, means that the Inspector did not have reasonable grounds for issuing the Improvement Notices and the WorkSafe Commissioner did not have reasonable grounds for affirming the Improvement Notices. The Inspector saying she would ‘welcome an appeal’ and wanted to ‘run a test case’ does not mean there was no reasonable basis on which she reached her opinions or on which the WorkSafe Commissioner affirmed the Improvement Notices. There had recently been an incident of a horse-rider receiving a head injury after she fell from her horse at a CPC station. The Inspector had reviewed the materials set out at [64] and [67], including CPC and HPPL policies. She had spoken to people in the industry about current practices. I cannot accept that the Inspector issued the Improvement Notices without regard to statistical matters, data or evidence. It is apparent from the Inspector’s email to Mr Florence dated 26 June 2020 that she did.

95      WorkSafe must be able to issue notices in a timely manner to address contraventions of work health and safety legislation that it reasonably believes are or may be occurring. It is not reasonable to expect a full, extensive review of the risk be completed before such notices are issued. In circumstances where the hazard had recently been realised as an incident, it is reasonable to expect WorkSafe to review policies and require improvements to be made in order to reduce the hazard in future. Without the benefit of expert evidence on the matter, I consider it uncontroversial that a reasonable person may consider that wearing a helmet is a practicable measure to take to mitigate the risk of head injuries from falling from a horse. The Inspector went further. She did an investigation and took into account what Mr Florence and Mr Stacey said to her about how CPC and HPPL already mitigated the risk of head injuries from falling from a horse. The WorkSafe Commissioner arrived at the same conclusion as the Inspector, having taken into account all the circumstances and the matters set out at [90] – [92] above.

96      In accordance with the legislative regime, CPC and HPPL were able to apply to the Tribunal for a review of the Improvement Notices, which they did. Had the parties not reached an agreement to resolve the matter, the Tribunal would have reheard the matter. The Tribunal would have had to ‘inquire into the circumstances relating to the Improvement Notice’, with the benefit of expert evidence. As held by the Full Bench in GHD Pty Limited v WorkSafe Western Australia Commissioner [2021] WAIRC 00655; (2022) 102 WAIG 89 at [31], citing Wormald Security Australia Pty Ltd v Peter Rohan Department of Occupational Health, Safety and Welfare (1994) 74 WAIG 2 at 4 per Franklyn J (Ipp J agreeing):

This requires, as the Tribunal correctly posited, that Tribunal examine whether, on the facts and circumstances in existence at the material time, [the Inspector] was justified in forming the opinion that he did, in issuing the Improvement Notice to the appellant. In effect, the Tribunal “stands in the shoes” of the Inspector. Based on the evidence before the Tribunal, including any expert evidence a party may adduce, or the Tribunal itself arranges to be placed before it, the Tribunal is required to find for itself, whether it can form the opinion formed by the Inspector, that led to the issuance of the Improvement Notice.

97      The Inspector and the WorkSafe Commissioner did not have the benefit of expert evidence at the time the Improvement Notices issued. They investigated a possible contravention of the OSH Act arising out of a workplace incident that had occurred, and on the information they gathered, formed an opinion on reasonable grounds that CPC and HPPL should comply with the Improvement Notices. I am conscious that this costs application is not a de facto trial of the matter. Necessarily the full picture is not before the Tribunal. But on what is before me, I consider that there was a reasonable basis for the Inspector to form the opinion she did and issue the Improvement Notices, and for the WorkSafe Commissioner to form the opinion he did and affirm the Improvement Notices.

98      CPC and HPPL applied to the Tribunal for a review of the Improvement Notices. In the course of dealing with the review, at the request of the parties, for a variety of reasons and generally by consent, the Tribunal granted the parties multiple extensions of time to comply with the programming orders. The most recent programming orders extended the programming timeframes by six months, as proposed by the applicants.

99      The applicants’ solicitor, Mr Phillips, wrote to WorkSafe on 3 October 2023:

Given the lead time required in preparing and filing witness statements and expert evidence, we infer that the decision not to put on any evidence was in fact reached by the WorkSafe Commissioner sometime well prior to 26 September 2023, when it was first communicated to us.

The position therefore appears to be that notwithstanding his obligations as a model litigant, the WorkSafe Commissioner has allowed the Applicant’s [sic] to continue to diligently prepare their evidence including expert evidence so that the Applicants could comply with the existing programming orders for a substantial period of time after the WorkSafe Commissioner had determined that he would no longer be seeking to defend or justify the Improvement Notices.

With respect, that takes the matter out of the ordinary and into the extraordinary, so as to justify an award of the Applicant’s costs thrown away in connection with the preparation of expert evidence.

100   I do not draw an adverse inference about when WorkSafe obtained its expert evidence, being one month before it was due to be filed and two months before the applicants’ expert evidence was due. That timing was consistent with compliance with the Tribunal’s programming orders. Moreover, the applicant proposed those programming orders.

101   I accept WorkSafe’s explanation that the WorkSafe Commissioner decided to concede the matters based on a draft expert report received on 7 September 2023 and counsel’s advice in light of that report. A proofing session involving counsel and the expert was held on 12 September 2023. Counsel provided written advice on 15 September 2023. The WorkSafe Commissioner decided to concede the matters on 21 September 2023. WorkSafe tried to communicate that to Mr Phillips the next day. Mr Phillips was unavailable. The following weekday was a public holiday. WorkSafe informed the applicants’ solicitor of its decision to concede the matters the next business day. In those circumstances, I do not consider that it is open to infer that the WorkSafe Commissioner’s decision not to put on any evidence was ‘reached well prior to 26 September 2023 when it was first communicated to [the applicants]’. I cannot conclude that the WorkSafe Commissioner allowed the applicants to continue to diligently prepare their evidence (including expert evidence) for a substantial period after he determined he would concede the matters. In my view, the WorkSafe Commissioner’s decision to concede the matters was:

a. made at a reasonable time in the proceedings; and

b. communicated to the applicants in a prompt and reasonable manner.

102   That the applicants’ experts had already provided draft reports and attended proofing sessions with counsel and one of the witnesses was already in transit for site visits does not justify an order for costs in the circumstances. Neither does the fact that proceedings remained on foot and programming orders had not been vacated at the time WorkSafe said it intended to concede the proceedings, in circumstances where the applicants did not ask the Tribunal to suspend or vacate the programming orders. While it may be true that there is nothing to stop WorkSafe issuing future notices about the same issue and WorkSafe has not withdrawn its safety alert about station hands riding horses without wearing helmets, that does not justify an order for costs in the circumstances.

103   In my view, an award of costs would be an exceptional step, and not one to take lightly. But even if I were to accept the applicants’ submission set out at [42] above, that decisions of this Tribunal applying s 27 of the IR Act were wrong and should not be followed because the Tribunal’s power to award costs is unconfined and extreme or special circumstances are not required, I am not persuaded that it would be in accordance with equity and good conscience in this case to order that WorkSafe pay the applicants’ expert witness expenses. In coming to that decision, I have included consideration of the applicants’ interests and that of the employer community.

104   In the circumstances of this matter, I do not consider that there was anything exceptional or unreasonable about the timing of WorkSafe’s decision to concede the proceedings, or the timing of how WorkSafe communicated that decision to the applicants. The evidence before me does not lead to a finding that it was unreasonable for WorkSafe to issue or affirm the Improvement Notices. Nor does it lead to a finding that WorkSafe conducted the proceedings other than in good faith, or in a way that would amount to an abuse of process. I am satisfied that proceedings were not instituted or continued without cause. As noted in Legal Services and Complaints Committee v Young, regulatory bodies are expected to evaluate a case up until the time of hearing. WorkSafe acted promptly and reasonably in the circumstances, and in accordance with the Tribunal’s programming orders (which the applicants proposed). I do not consider that WorkSafe caused the applicants to incur costs unnecessarily or unreasonably by defending the proceedings for as long as it did, in the circumstances of this matter.

105   I do not consider that it would be equitable or in accordance with good conscience in the circumstances of this case to order that WorkSafe pay some or all of the applicants’ witness expenses. I will dismiss the application for costs.

106   By consent, the Tribunal will order:

1. that the decision of the WorkSafe Commissioner of 30 April 2021 to affirm Improvement Notice no 90014939 is revoked;
2. that Improvement Notice no 90014939 is set aside;
3. that the decision of the WorkSafe Commissioner of 30 April 2021 to affirm Improvement Notice no 90015070 is revoked; and
4. that Improvement Notice no 90015070 is set aside.