Kovic v SafeWork NSW [2019] NSWIRComm 1040

Kovic v SafeWork NSW [2019] NSWIRComm 1040

No valid request was made by FACS for SafeWork to appoint an inspector to review the PIN within seven days as required by s.100(1) of the WHS Act. Accordingly, the inspector lacked power to cancel the PIN under s.102 and the internal review decision was also invalid. The Commission's jurisdiction to review the decision is not ousted by the invalidity. The decisions to cancel and confirm cancellation of the PIN must be revoked.

Parties
Applicant: Frank Kovic; Respondent: SafeWork NSW; Intervenor: Department of Family and Community Services
Jurisdiction
Australia
Judgment Date
21 June 2019
Procedural Posture
Application for External Review Under Work Health and Safety Act 2011 (nsw) / Final Determination at Industrial Relations Commission
Outcome
Application for external review upheld. The cancellation of the PIN and the confirmation of cancellation are both revoked.
Legal Topics
Provisional Improvement Notice Review, Jurisdictional Time Limits, Statutory Interpretation, Inspector Powers Under WHS Act, Review of Administrative Decisions
Industrial Relations Work Health and Safety Administrative Law Provisional Improvement Notice Review Jurisdictional Time Limits Statutory Interpretation Inspector Powers Under WHS Act Review of Administrative Decisions

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 8 Party arguments 2
Sign in to unlock

Parties

Frank Kovic

Applicant

SafeWork NSW

Respondent

Department of Family and Community Services

Intervenor

Procedural Posture

Application for External Review Under Work Health and Safety Act 2011 (nsw) / Final Determination at Industrial Relations Commission

Legal Issues

  1. 1 Whether FACS requested SafeWork to appoint an inspector to review the PIN within 7 days as required by s.100 WHS Act
  2. 2 Whether the inspector had power to cancel the PIN absent a valid s.100 request
  3. 3 Whether s.82 or s.160 powers provided an alternative statutory basis for cancellation

Ratio Decidendi

No valid request was made by FACS for SafeWork to appoint an inspector to review the PIN within seven days as required by s.100(1) of the WHS Act. Accordingly, the inspector lacked power to cancel the PIN under s.102 and the internal review decision was also invalid. The Commission's jurisdiction to review the decision is not ousted by the invalidity. The decisions to cancel and confirm cancellation of the PIN must be revoked.

Court Disposition

Application for external review upheld. The cancellation of the PIN and the confirmation of cancellation are both revoked.

Orders

  • The decision of the SafeWork inspector made on or about 18 May 2018 to cancel the Provisional Improvement Notice issued by Mr Kovic to the Department of Family and Community Services on 16 November 2017 is revoked.
  • The decision of SafeWork's internal reviewer made on or about 15 June 2018 confirming the decision of the inspector to cancel the Provisional Improvement Notice is revoked.