REVIEW OF IMPROVEMENT NOTICE

THE OCCUPATIONAL SAFETY AND HEALTH TRIBUNAL

CITATION : 2015 WAIRC 00327

DELIVERED : wednesDAY, 22 April 2015

FILE NO. : OSHT 1 OF 2015

Applicant

AND

Commissioner Lex McCulloch WorkSafe WA

Respondent

CatchWords : Occupational Safety and Health Act 1984 – Application for costs – Principles applied - Application dismissed

Legislation : Occupational Safety and Health Act 1984 (WA) s 51, s 51A, s 51G, s 51I

Industrial Relations Act 1979 (WA) s 26(1), s 27(1), s 27(1)(c),

Occupational Safety and Health Regulations 1996 (WA) pt 3 - div 1, reg 3.20(2)(c)

Result : Order issued dismissing application

Representation:

Applicant : Ms M Saraceni (of counsel) and with her Ms J Hart (of counsel)

Respondent : Ms S Duce (of counsel)

Case(s) referred to in reasons:

Anthony & Sons Pty Ltd v Worksafe Western Australia Commissioner [2006] WAIRC 05671; (2006) 86 WAIG 3323

Commissioner of Police of Western Australia v AM [2010] WASCA 163

Brailey v Mendex Pty Ltd (1993) 73 WAIG 26

Owners of Argosy Court Strata Plan 21513 v Worksafe Western Australia Commissioner [2009] WAIRC 331; (2009) 89 WAIG 714

The Western Australian Builders Labourers, Painters and Plasterers Union of Workers v Clark (1996) 76 WAIG 4

Wormald Security Australia Pty Ltd v Rohan, Department of Occupational Health, Safety and Welfare (1994) 94 WAIG 2

Supplementary Reasons for Decision

1            On Tuesday, 17 February 2015 the Occupational Safety and Health Tribunal (the Tribunal) issued an order [2015] WAIRC 00183 revoking the s 51 notice, cancelling the improvement notice 64000646 (the Notice) and amending the programming order issued by the Tribunal on 4 February 2015 [2015] WAIRC 00124.  On Thursday, 2 April 2015 the Tribunal issued its reasons for decision in the same matter.

2            The Notice of Referral was listed for mention on 13 February 2015 and prior to the hearing the respondent, the Commissioner for WorkSafe (the Commissioner) made application for orders to cancel the Notice, revoke the decision of the Tribunal of 15 January 2015 and revoke the programming order of the Tribunal made on 4 February 2015.  At the for mention hearing the Tribunal advised the parties that it was unable to respond to the Commissioner’s request in the absence of an inquiry under the Occupational Safety and Health Act 1984 (the OSH Act).  At the conclusion of the inquiry the applicant, Fewstone Pty Ltd trading as City Beach (City Beach) made a formal application for costs against the Commissioner submitting a detailed schedule associated with the costs application.  Both City Beach and the Commissioner agreed the costs application should be dealt with by way of written submissions.  A timetable for the provision of those submissions was put in place. 

3            One of the leading authorities in dealing with costs in the Western Australian Industrial Relations Commission (the WAIRC) is the decision of the Full Bench in Brailey v Mendex Pty Ltd 73 WAIG 26, 27:

“Costs” includes fees, charges, disbursements, expenses and remuneration (see Halsbury's Laws of England (4th Edition), vol 37, para 712).  Costs chargeable under party and party taxation are all that are necessary to enable the adverse party to conduct the litigation and no more (see Smith v Buller (1875) LR 19 Eq 473 at 475).

The general policy in industrial jurisdictions is that costs ought not to be awarded, except in extreme cases.

In this case, we are concerned with s.27(1)(c) of the Act.  S.27(1)(c) gives a discretion to the Commission clearly conferred by the use of the word “may” (see s.3 and s.56 of the Interpretation Act 1984) to order any party to the matter to pay to any other party costs and expenses, including expenses of witnesses as are specified in the order.  No costs are to be allowed for the services of any legal practitioner or agent.

The question is what does the phrase “costs and expenses” mean?  “Costs”, as defined above, includes all of the expenses.  No costs are allowed for the services of a legal practitioner or agent.  Thus, the professional costs element is eliminated.

So then what are costs?  It would seem to us that “costs and expenses” must, without the distinguishing ingredient of legal or professional costs, be read as a phrase which means all of the cost and expense which the applicant under s.27(1)(c) is entitled to claim.  It seems to us that this can only be done on a party and party basis.

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 (see Hospital and Benevolent Homes Award (1983) AILR 409 where costs were awarded in a matter where the applicant terminated the proceedings after putting the respondent to the expense of defending without obtaining an order).

Background

4            The Notice of Referral of dispute was filed on 22 January 2015.  On 27 January 2015 the Tribunal in accordance with the Industrial Relations Commission Regulations 2005 (the IRC Regulations) directed City Beach serve the Notice of Reference of dispute on the Commissioner and file a Form 4 Statutory Declaration of Service in the Registry within 24 hours of service.

5            The Tribunal listed a directions hearing on 2 February 2015 and issued a consent order from that hearing [2015] WAIRC 00124, having regard for the OSH Act and the Industrial Relations Act 1979 (the IR Act).  The order outlined the directions necessary for hearing and determining the s 51A matter as referred, namely conducting an inquiry into the Notice as referred by City Beach.  The hearing was scheduled for two days: on 8 and 9 April, 2015 in Perth.

6            On 12 February 2015 the Tribunal received a Form 1 application from the Commissioner seeking the:

-       setting down the matter for urgent hearing on 13 February 2015;

-       revocation of the s 51 decision of the Commissioner of 15 January 2015;

-       cancellation of the Notice; and

-       revocation of Mayman C’s direction order [2015] WAIRC 00124.

7            By agreement between City Beach and the Commissioner the Tribunal listed a s 51A inquiry into the matter as referred at short notice on Friday, 13 February 2015.  At the conclusion of the inquiry the Tribunal advised, following evidence and submissions from counsel representing the Commissioner and submissions from City Beach that in accordance with the provisions of s 51A(5) of the OSH Act the Tribunal was satisfied to issue an order:

-       revoking the s 51 decision of the Commissioner of 15 January 2015;

-       cancelling the Notice of the inspector at first instance; and

-       amending Mayman C’s directions order [2015] WAIRC 00124.

8            The order was issued in the form of a minute and subsequently issued [2015] WAIRC 00183.

City Beach application for costs

9            At the conclusion of the s 51A inquiry City Beach made an application to the Tribunal for costs against the Commissioner in the form of a schedule with supporting documents.  A summary of the costs was provided by way of a table:

Commissioner’s notice of answer

10         The Commissioner in his notice of answer submitted that the OSH Act and the Occupational Safety and Health Regulations 1996 (the OSH Regs) are silent as to the issue of costs relating to proceedings before the Tribunal.  However, s 51I of the OSH Act provides that s 27 of the IR Act applies with respect to the jurisdiction of the Tribunal under s 51G of the OSH Act and therefore the matter of costs.

11         Section 27(1)(c) of the IR Act allows the WAIRC discretion to order one party to pay any other party such costs and expenses which may include expenses associated with bringing witnesses that may be specified in an order but exclude any costs associated with the services of a legal practitioner or agent.  In this respect the IR Act does not define the term ‘costs’ or the term ‘expenses’.

12         The Commissioner submitted that the Legal Profession Act 2008 (WA) defines legal costs as amounts that the person has been or maybe charged, or may become liable to pay to a law practice for the provision of legal services including disbursements but not including interest.  Further the same statute defines ‘disbursements’ as including outlays.  The Commissioner noted that City Beach in these proceedings seeks a total of $3,899.77 associated with expenses incurred in the preparation of OHST 1 of 2015.

13         A schedule of costs was provided by City Beach as relevant in preparing for OSHT 1 of 2015 annexing the following documents:

7. A. Page 6 of Account Ref 150093 showing Disbursements;

 B. Law In Order Tax Invoice 243819 dated 21 January 2015;

C. Virgin Australia E-Ticket, Receipts and Tax Invoice DVQHNM and Virgin Australia webpage print out for Changes and Cancellations;

D. WA Industrial Relations Commission Tax Invoice 7997 dated 12 February 2015;

E. Allwest Investigations Group Pty Ltd Tax Invoice 150095MP;

F. Law in Order Tax Invoice 246031 dated 12 February 2015 and Law in Order documents related to above Tax invoice (4 pages); and

G. Disbursement Ledger Matter 150093 Client Thynne and Macartney dated 12 February 2015.

8. A. Sundries payable by Thynne and Macartney to Kott Gunning such as internal photocopying, postage, scanning, telephone and printing;

B. Photocopying and filing by Law in Order;

C. Cancellation fee with Virgin Australia for airfare for Deanna Chambers on 06 to 10 April 2015;

D. Unknown transcript request from WAIRC;

E. Service of 2 summonses filed by Applicant;

F. Hosting and Consulting by Law in Order;

G. Purchase of 1 x 2GB External Hard drive for client Thynne and Macartney.

([7] & [8] from the Commissioner’s notice of answer – 18 February 2015)

14         The Commissioner submitted ‘expenses’ had the same meaning as disbursements and outlays and therefore were not claimable under s 27(1)(c) of the IR Act as they are services of a legal practitioner.  In the alternative it had been held in relation before the Commission that cost applications are generally not awarded except in exceptional circumstances: Brailey v Mendex.

15         In Brailey v Mendex the WAIRC determined that the power to order expenses should be exercised with restraint and for an order to issue awarding expenses such is generally considered to be rare.  In Anthony & Sons Pty Ltd v Worksafe Western Australia Commissioner [2006] WAIRC 05671; (2006) 86 WAIG 3323 the Tribunal stated in relation to an application for costs by an expert witness that had been bought by the Commissioner:

In making this decision under s 27(1)(c) the Tribunal notes that such expenses ought not be awarded except in extreme cases where an applicant or respondent has demonstrated that an application has been frivolously or vexatiously instituted or defended.  In this matter the Tribunal does not consider that the employer has acted frivolously or vexatiously.  The Tribunal finds that the WorkSafe Commissioner’s claim for witness expenses is without merit and in making this decision a factor taken into account has been the Tribunal received no evidence as to Mr Simms’ expenses other than assertions made from the bar table.

16         Further proceedings in Commissioner of Police of Western Australia v AM [2010] WASCA 163 Buss J held in the context of an appeal against a decision of the WAIRC that the test for enlivening the power to order payment of legal costs is whether the proceedings have been frivolously or vexatiously instituted or defended.  From an occupational health and safety perspective and applying the Anthony & Sons Pty Ltd v Worksafe the same test is applied.  Buss J held the ordinary meaning of ‘frivolous’ is where there are no reasonable grounds for a claim and the ordinary meaning of ‘vexatious’ is instituting such a claim without sufficient grounds for success such as to cause trouble or annoyance to the other party.  Buss J held that ‘frivolous’ in such circumstances is a subset of ‘vexatious’.

17         At [36] Buss J said:

… something substantially more than either a lack of success, or the prospect of a lack of success, must be established before an unsuccessful party can be held to have frivolously or vexatiously instituted or defended, as the case may be, an appeal under s 90.

18         It was submitted by the Commissioner that in this matter, namely OSHT 1 of 2015, the Commissioner has not behaved in a manner which could be interpreted as either frivolous or vexatious.  The Commissioner submitted he acted quickly and reasonably in resolving the matter, the relevant dates being as follows:

-       the Notice of Referral was received on 28 January 2015.  The Commissioner formally requested discovery from City Beach at the directions hearing on 2 February 2015 in order to consider its position on the Notice.  A formal order was made to the Tribunal in relation to this matter [2015] WAIRC 00124.  City Beach was on notice from that date that the Commissioner was considering his position;

-       on 10 February 2015 at 5:08 pm the Commissioner wrote to counsel for City Beach asking whether she would be available to attend the Tribunal on Friday, 13 February 2015 advising that the Commissioner would be forwarding a draft order seeking that the decision of the Commissioner be revoked, the Notice be cancelled and that the orders of the Tribunal as issued on 2 February 2015 be revoked; and

-       the draft orders were forwarded to City Beach by email at 9.38 am on 11 February 2015.  A formal application as requested in writing by the Tribunal on 11 February 2015 was forwarded by email on 11 February 2015 at 5:58 pm and served by the Commissioner on 12 February 2015 prior to 11.00 am.

19         The Commissioner submitted there appeared to be no basis for the Tribunal to move away from the normal practice whereby costs are not commonly awarded in this jurisdiction.

City Beach submissions

20         At the conclusion of the inquiry before the Tribunal on 13 February 2015 City Beach sought to apply for the payment of costs.  The OSH Act is silent as to the awarding of costs in proceedings before the Tribunal.  However, s 51I of the OSH Act provides that certain provisions of the IR Act apply to proceedings commenced in the Tribunal including s 27 of the IR Act. 

21         It is the submission of City Beach that s 27(1)(c) of the IR Act provides to the Tribunal a discretion to order one party to pay another party’s costs and expenses, excluding costs for the service of a legal practitioner or agent in relation to any matter before the Tribunal.  It is the view of City Beach that the term ‘legal costs’ as reflected in the Legal Profession Act 2008 as submitted by the Commissioner is not relevant to interpreting s 27(1)(c) of the IR Act.  The terms ‘costs’ and ‘expenses’ should in fact be understood to be in accordance with their ordinary meaning and therefore should include any costs or expenses that have been incurred by a party to an action except for those expenses incurred by a legal practitioner in the course of the provision of legal advice. 

22         City Beach submitted that the expenses as outlined in the schedule of costs relate to expenses their client sustained in the course of preparing for the formal inquiry as undertaken on 13 February 2015, expenses that would have been met regardless of whether the services of a legal practitioner was used.  City Beach detailed the schedule of costs in relation to:

(a) Sundries incurred during the course of preparing documents and evidence to be utilised during the course of the formal inquiry;

(b) Photocopying and filing of documents and evidence - completed by Law in Order;

(c) The cancellation fee issued by Virgin Australia for the airfares of Deanna Chambers - a witness to the proceedings who was required to give evidence during the formal inquiry;

(d) The transcript request from WAIRC for the matter of the Owners of Argosy Court Strata Plan 21513 v Worksafe Western Australia Commissioner [2009] WAIRC 331, being the only matter located that was subject to a similar order as those sought by the application;

(e) The fee issued by a Process Server for personal service of witness summonses required to produce documents and ultimately provide oral evidence at the formal inquiry;

(f) The establishment and hosting Relatively Platform by Law in Order – a document management system utilised for the purposes of the applicant preparing its witnesses located in various states within Australia;

(g) The purchase of a portable hard drive for use by the City of Perth Witness in response to a summons to product documents, being CCTV footage.

([18] City Beach submissions 20 March 2015)

23         City Beach conceded that in the matter of Brailey v Mendex the general policy is that costs are not awarded except in extreme cases:

20. The Applicant submits that the circumstances of these proceedings constitute extreme cases because the expenses incurred by the Applicant were ultimately incurred unnecessarily as a result of the Respondent’s Decision at first instance that could have never been upheld at the conclusion of a formal inquiry.

21. During the course of the formal inquiry, the solicitor for the Respondent gave evidence that:

(a) “There is no record in any of the notes of any statements of employees as to things that would lead to a contravention of that regulation” (at page 10 of the Transcript of Proceedings);

(b) “... there is essentially no evidence of a contravention on 9 December 2014 by the failure to provide a lunchroom” (at page 10 of the Transcript of Proceedings); and

(c) “There's several matters that - in the Commissioner’s review of the notice that were irrelevant considerations and - and they are raised in the grounds by the - the applicant and that's in relation to they – the staff having to purchase their meals and also the inclement weather.  Neither of those matters are - are relevant under the particular regulation” (at page 11 of the Transcript of Proceedings).

([20] and [21] extract from City Beach submissions)

24         City Beach submitted that costs should be awarded where proceedings are frivolously or vexatiously defended.  In Anthony & Sons Pty Ltd v Worksafe the Tribunal determined that costs and expenses should be awarded where a party has been able to demonstrate that an application has been frivolously or vexatiously commenced or defended.

25         In light of the very short time frame in which any party has leave to apply to the Tribunal seeking a review of the decision of a Commissioner, that being 7 days pursuant to a s 51A(2) matter under the OSH Act, City Beach submitted in these circumstances it is the obligation of the Commissioner to consider the merits of the claim and ultimately to abandon its defence as soon as is reasonably practicable following service of the Form 7 – Notice of Referral to the Tribunal.

26         Contrary to that approach it was submitted by City Beach that the Commissioner continued to defend these proceedings in a frivolous or vexatious manner for a period of time after it became clear to the Commissioner that the Commissioner’s s 51 decision could never be upheld and in particular after the issuance of programming orders by the Tribunal and following the issuing of an order scheduling a formal inquiry on 4 February 2015.

Commissioner’s further submissions

27         The Commissioner submits that [20] to [22] of City Beach submissions are not relevant to a consideration by the Tribunal on the question of costs.  Such matters relate to an administrative decision on the basis of the Commissioner and do not form part of the proceedings.  The Commissioner suggests in exercising his duty pursuant to s 51 under the OSH Act there were extraneous matters referred to in his decision to affirm the notice however such a consideration does not remove from those matters which ultimately led the Commissioner to affirm the notice. 

28         The Commissioner submitted his position to be:

The revised position of the Commissioner in this matter relates solely to the lack of any supporting evidence for a contravention on 09 December 2014 as opposed to a continuing or repeated contravention: see transcript OSHT 1 of 2015, 13 February 2015, at pages 10 and 11.

(extract [4] Commissioner’s further submissions 27 March 2015)

29         The Commissioner in relation to the awarding of costs reflected on the decision of Brailey v Mendex in that costs are generally not awarded except in the extreme cases.  Extreme cases have been held in occupational health and safety matters to mean where an applicant or respondent has demonstrated that an application has been frivolously or vexatiously instituted or defended, that being Anthony & Sons Pty Ltd v Worksafe.

30         City Beach submitted that the Commissioner defended the proceedings frivolously and vexatiously.  Such a submission is objected to by the Commissioner and the chronology of events in [3] to [9] of City Beach submissions is accepted by the Commissioner and demonstrates his timely response in resolving this matter.  The Commissioner emphasises that within three business days of being served with the Form 7 application he had indicated an intention to attempt to resolve the matter without the need for a two day hearing: see transcript OSHT 1 of 2015, 2 February 2015, 23.  Between the service of the Form 7 referral and the conclusion of the matter there was a lapse of only 13 business days.  It is the submission of the Commissioner that there is no basis for any departure by the Tribunal from the normal practice that costs should generally not be awarded in this jurisdiction.

Conclusion

31         The awarding of costs by the Tribunal is a discretionary matter.  The test, as reflected by the Industrial Appeal Court in The Western Australian Builders Labourers, Painters and Plasterers Union of Workers v Clark (1996) 76 WAIG 4 is an objective one.  One of the leading authorities on costs Brailey v Mendex as earlier referred to in these reasons [3] has been relied upon by the Tribunal in arriving at its decision in this matter. 

32         The Tribunal considers that the OSH Act, in particular s 51I, encompass specified provisions of the IR Act into the jurisdiction of the Tribunal including s 27 from the IR Act.  Section 51I provides for the practice, procedure and appeals relating to the operation of the Tribunal.  

51I. Practice, procedure and appeals

(1) The provisions of sections 22B, 26(1), (2) and (3), 27, 28, 31(1), (2), (3), (5) and (6), 33, 34(1), (3) and (4), 36 and 49 of the Industrial Relations Act 1979 that apply to and in relation to the exercise of the jurisdiction of the Commission constituted by a commissioner apply to the exercise of the jurisdiction conferred by section 51G —

(a) with such modifications as are prescribed under section 113 of that Act; and

(b) with such other modifications as may be necessary or appropriate.

33         Section 27(1)(c) of the IR Act provides a discretionary decision making power to the WAIRC to make an order for ‘costs’ and ‘expenses’, excluding those for any industrial agent or legal practitioner.  Brailey v Mendex refers to the general policy in the state industrial jurisdiction that costs should not be awarded except in ‘extreme cases’.  For the purpose of these proceedings the Tribunal adopts a similar approach that has been well versed and well-practiced under the IR Act.

34         Based on the decision of the Industrial Appeal Court in Wormald Security Australia Pty Ltd v Rohan, Department of Occupational Health, Safety and Welfare (1994) 94 WAIG 2 it is the view of the Tribunal that a s 51A review under the OSH Act is directed to establishing whether the inspector at first instance was justified in forming the opinion in question, be it related to an improvement or prohibition notice.  In the case in question in OSHT 1 of 2015, clearly the matter related to an improvement notice.  Details associated with the preparation and submission of a s 51 application to the Commissioner, whilst relevant, are not the primary element involved in a s 51A inquiry before the Tribunal. 

35         Ritter AP in The Worksafe Western Australian Commissioner v The Original Croissant Gourmet Pty Ltd [2007] WAIRC 01273; (2007) 88 WAIG 22 stated that the process to be undertaken by the Tribunal when improvement notices or prohibition notices are referred for review is as follows:

85 As stated an improvement notice or prohibition notice may be referred for review to the appellant by the people specified in s51(1) of the OSH Act.  The scope of the review by the appellant is set out in s51(5) of the Act.  The appellant “shall inquire into the circumstances relating to the notice”. The reference to “the notice” is clearly to the improvement or the prohibition notice which has been issued. After undertaking the inquiry, s 51(5) provides the appellant with three alternative powers which may be exercised.  They are to affirm the notice, affirm the notice with such modifications as seem appropriate or cancel the notice.  Section 51(5) then provides that subject to s 51A the improvement or prohibition notice has effect or ceases to have effect accordingly. 

86 Each of the appellant’s powers under s51(5) are about and directed to “the notice”.  In this case, the subject of the referral to the appellant was the first and second improvement notices.  In conducting the review, the appellant had no power to revoke or cancel the improvement notices and in their place issue a prohibition notice, or something similar. Indeed the powers of the appellant under s51(5) are tightly constrained as I have set out.

87 As referred to earlier, when Wormald Security was decided the jurisdiction to review which the appellant now possesses under s51 was held by the Commission.  Accordingly, the observations by Franklyn J (with whom Ipp J agreed) in Wormald Security about the nature of the then review by the Commission are now apposite to that undertaken by the appellant. At page 4 his Honour said (with the “Commissioner” meaning the Commission and not the appellant): –

“A person to whom a prohibition notice is issued is entitled to refer that notice to the Industrial Relations Commission for review as of right (s51(1)).  On such reference the Industrial Relations Commission (‘the Commissioner’) is required and obliged to “inquire into the circumstances relating to the notice”.  Having done so he may affirm it as is or with such modification as seems appropriate or cancel it (s51(5)). Those provisions in my opinion make it clear that the review is directed to establishing whether, on the evidence available to the Commissioner, the Inspector was justified in forming the opinion in question.” (emphasis added)

88 Later on the same page Franklyn J added: –

“In other words he must approach the facts and circumstances as found by him on his inquiry as if he were the Inspector determining whether, on those facts and circumstances, he could reasonably form the opinion formed by the Inspector of the particular activity, having regard also to the reasons and matters set out in the notice.  If so, he affirms the notice.  If not, depending on the opinion formed by him as to such matters, he either affirms it with modifications or cancels it as is appropriate.”

36         I have considered fully the submissions of City Beach and the Commissioner with respect to the application for costs made by City Beach on 13 February 2015 at the conclusion of the s 51A inquiry.

37         The Tribunal concurs with the submissions of City Beach that the Legal Profession Act 2008 (WA) is not a statute to be considered when considering the terms ‘costs’ and ‘expenses’.  The Tribunal considers such terms should be adopted as per [3] of these reasons by the Full Bench in Brailey v Mendex.

38         The submission by City Beach that the defence of the proceedings by the Commissioner constitute extreme circumstances because the expenses incurred by City Beach (reference [20] and [21] from City Beach submissions) could never have been sustained had the matter proceeded to a s 51A inquiry in the normal manner.  The Tribunal might agree in different circumstances.  However, on Thursday, 12 February 2015 the Tribunal was notified by way of a Form 1 application from the Commissioner requesting, amongst other things, to cancel the Notice.  Therefore the Tribunal does not accept the assertion by City Beach that the circumstances preceding the s 51A inquiry (particularly those specified in [21] of City Beach submissions) were ‘extreme’.  In  Brailey v Mendex in determining what was ‘extreme’ the Full Bench said such applications:

… 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 (see Hospital and Benevolent Homes Award (1983) AILR 409 where costs were awarded in a matter where the applicant terminated the proceedings after putting the respondent to the expense of defending without obtaining an order).

39         In this matter the Tribunal is satisfied the actions by the Commissioner, having regard for equity and good conscience, cannot be considered to be ‘extreme’ in that the Commissioner, sought by formal application to the Tribunal on 12 February 2015  to:

-       set the matter down for urgent hearing on 13 February 2015;

-       revoke the s 51 decision of the Commissioner of 15 January 2015;

-       cancel the Notice; and

-       revoke Mayman C’s direction order [2015] WAIRC 00124.

40         A copy of the Notice of Referral in this matter was received by the Commissioner on 28 January 2015.  Some 11 working days then lapsed until the formal application was received by City Beach from the Commissioner.  Contrary to the view submitted by City Beach, the Tribunal does not accept that the period of time between the receipt of the Notice of Referral until the lodging of the formal application to the Tribunal on 12 February 2015 was an ‘extreme case’ as envisaged by the Full Bench in Brailey v Mendex.  In this matter the Commissioner had formally sought an order, [2015] WAIRC 00183.

41         The revised position of the Commissioner as notified in [4] of his submissions of 27 March 2015 indicate that his application to cancel the Notice relies solely on the evidence that was ultimately given at the s 51A inquiry:

The - the issue is that the Improvement Notice is written as a contravention on a specific date not as a continuing contravention under ---

… Can I go to the Form 1 – is there any other information you wish to give to the Tribunal that’s relevant to the Form 1 application?---Only by way of submissions rather than evidence.

Please?---Essentially, there are no notes of any conversations with employees who could give evidence that they were required to take their breaks in the mall and at night.  There’s no - no evidence that employees were required to work at night on that particular date.  There’s no evidence that vagrants were approached or have approached employees in the mall whilst they’re on that - the break on that date and there’s no evidence and - and this is probably the biggest issue, there’s no evidence that vagrants pose a risk to their health and safety of employees on that date.  There’s several matters that - in the Commissioner’s review of the notice that were irrelevant considerations and - and they are raised in the grounds by the - the applicant and that’s in relation to they - the staff having to purchase their meals and also the inclement weather.  Neither of those matters are - are relevant under the particular regulation.

(ts 10,11 - combination of evidence and submissions by Ms Duce, counsel for Commissioner)

42         In considering whether the Commissioner had acted ‘frivolously’ and ‘vexatiously’ the Tribunal considered the decision of the Commissioner of Police of WA v AM at [36] per Buss J earlier referred at [19] of these reasons.

43         The Commissioner attempted to resolve the matter by communicating with counsel for City Beach and submitting formal advice to the Tribunal, the relevant dates being as follows:

-       the Commissioner received the Notice of Referral from City Beach on 28 January 2015;

-       the Commissioner formally requested discovery from City Beach at the directions hearing on 2 February 2015 in order to consider its position on the Notice;

-       a formal order was made by the Tribunal in relation to this matter [2015] WAIRC 00124;

-       City Beach was apparently on notice from that date that the Commissioner was considering its position;

-       10 February 2015 the Commissioner wrote to counsel for City Beach querying whether she would be available to attend the Tribunal on Friday informing that the Commissioner would be forwarding a draft order seeking that the s 51 decision of the Commissioner be revoked, the Notice be cancelled and that the orders of the Tribunal as issued on 2 February 2015 be revoked; and

-       11 February 2015 the Commissioner lodged a Form 1 in the registry of the WAIRC seeking that the s 51 decision of the Commissioner be revoked, the Notice be cancelled and that the orders of the Tribunal as issued on 2 February 2015 be revoked.

44         The Tribunal finds the actions by the Commissioner between the receipt of the Notice of Referral in OHST 1 of 2015 through to and including the date of the inquiry of 13 February 2015 reflect a prompt and reasonable response.

45         The Tribunal finds that the claim for costs by City Beach is without merit and in making this decision a factor taken into account by the Tribunal has been the view that the Commissioner acted promptly (Wednesday, 11 February 2015) in lodging an application to cancel the Notice.  The Tribunal does not consider that the Commissioner has acted frivolously or vexatiously.  Having regard to all of the circumstances of the case the Tribunal is not persuaded that the manner in which the Commissioner defended the proceedings could in any way considered to be ‘extreme’.

46         Accordingly, an order is issued by the Tribunal pursuant to s 51I of the OSH Act dismissing the application.

47         The Tribunal notes the circumstances surrounding the issuance of the Notice on 9 December 2014 and the s 51 review against City Beach in 2015 were not entirely appropriate in terms of the application by a statutory authority, namely the Commissioner, seeking to uphold a supervisory process, however the provision of a lunchroom consistent with pt 3 – div 1, reg 3.20(2)(c) of the Occupational Safety and Health Regulations 1996 was, and remains a regulatory requirement for Western Australian workplaces.