Benjamin Kreger v SafeWork NSW [2019] NSWIRComm 1002

Benjamin Kreger v SafeWork NSW [2019] NSWIRComm 1002

The Commission has jurisdiction to make orders under s 229(2)(c) of the WHS Act, even if the eligible person has previously received reasons for the decision. The application was made within the time permitted by the order, and procedural defects in other proceedings do not invalidate orders made for the purpose of setting time limits under s 229(2)(c). Therefore, the jurisdictional challenge is dismissed.

Parties
Applicant: Benjamin Kreger; Respondent: SafeWork NSW
Jurisdiction
Australia
Judgment Date
18 January 2019
Procedural Posture
Application for External Review / Jurisdictional Challenge Dismissed; Matter to Be Listed for Conciliation
Outcome
Jurisdictional challenge dismissed; matter to be listed for conciliation
Legal Topics
External Review of WHS Decisions, Jurisdictional Challenge, Statutory Construction, Procedural Fairness
Industrial Law Work Health and Safety Administrative Law External Review of WHS Decisions Jurisdictional Challenge Statutory Construction Procedural Fairness

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Parties

Benjamin Kreger

Applicant

SafeWork NSW

Respondent

Procedural Posture

Application for External Review / Jurisdictional Challenge Dismissed; Matter to Be Listed for Conciliation

Legal Issues

  1. 1 Whether the application for external review was made out of time under s 229 of the Work Health and Safety Act 2011 (NSW)
  2. 2 Whether the order made in other proceedings later found to be a nullity can be relied upon to permit filing of application

Ratio Decidendi

The Commission has jurisdiction to make orders under s 229(2)(c) of the WHS Act, even if the eligible person has previously received reasons for the decision. The application was made within the time permitted by the order, and procedural defects in other proceedings do not invalidate orders made for the purpose of setting time limits under s 229(2)(c). Therefore, the jurisdictional challenge is dismissed.

Court Disposition

Jurisdictional challenge dismissed; matter to be listed for conciliation

Orders

  • The jurisdictional challenge to these proceedings brought by SafeWork NSW is dismissed.
  • The matter will be listed for conciliation on a date to be fixed.