Killen v SafeWork NSW and NSW Rural Fire Service [2019] NSWIRComm 1078

Killen v SafeWork NSW and NSW Rural Fire Service [2019] NSWIRComm 1078

The scope of the Improvement Notice issued by the inspector related to processes applicable across the NSW Rural Fire Service, not limited to Region 1. As these processes affect all staff, including those in the applicant’s workgroup, both the applicant’s and those he represents’ interests are affected. The applicant therefore has standing as an ‘eligible person’ under s 229 of the WHS Act to seek external review. Whether those interests are adversely affected will be determined at the substantive hearing.

Jurisdiction
Australia
Judgment Date
18 October 2019
Procedural Posture
External Review Application / Interlocutory Ruling on Standing and Notice of Motion
Outcome
Application for orders 2 and 3 of Notice of Motion dismissed; directions and liberty to apply granted; matter listed for further directions.
Legal Topics
['standing for External Review' 'improvement Notice Under WHS Act' 'health and Safety Representative Eligibility']
['industrial Relations' 'work Health and Safety'] ['standing for External Review' 'improvement Notice Under WHS Act' 'health and Safety Representative Eligibility']

Case Brief

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Procedural Posture

External Review Application / Interlocutory Ruling on Standing and Notice of Motion

Legal Issues

  1. 1 ["Whether the applicant has standing as an 'eligible person' under s 229 of the Work Health and Safety Act 2011 (NSW) for external review of a decision setting aside an Improvement Notice" 'Scope of improvement notice—whether it affects processes and interests beyond Region 1']

Ratio Decidendi

The scope of the Improvement Notice issued by the inspector related to processes applicable across the NSW Rural Fire Service, not limited to Region 1. As these processes affect all staff, including those in the applicant’s workgroup, both the applicant’s and those he represents’ interests are affected. The applicant therefore has standing as an ‘eligible person’ under s 229 of the WHS Act to seek external review. Whether those interests are adversely affected will be determined at the substantive hearing.

Court Disposition

Application for orders 2 and 3 of Notice of Motion dismissed; directions and liberty to apply granted; matter listed for further directions.

Orders

  • ['The application for orders 2 and 3 of the Notice of Motion is dismissed.' 'The parties are directed to consider these reasons and advise by 4 pm on 22 October 2019 whether any redactions are necessary to ensure compliance with the non-publication order.' 'The matter will be listed for directions on 30 October at...