Lipman Pty Ltd v SafeWork NSW [2021] NSWIRComm 1088

Lipman Pty Ltd v SafeWork NSW [2021] NSWIRComm 1088

The Commission found that, as at 18 March 2021, the objective facts did not support a reasonable belief that Lipman had contravened a provision of the Work Health and Safety Act 2011 in circumstances making it likely that the contravention would continue or be repeated, because prohibition and non-disturbance notices in force barred further activity, and the evidence showed Lipman took immediate steps to prevent recurrence. Therefore, a precondition for issuing the improvement notice was not satisfied.

Parties
Applicant: Lipman Pty Ltd; Respondent: SafeWork NSW
Jurisdiction
Australia
Judgment Date
17 November 2021
Procedural Posture
External Review / Final Orders
Outcome
external review upheld; improvement notice and internal review decision revoked
Legal Topics
Improvement Notice, Reasonable Belief Test, Duties of Principal Contractor, External Review Under Work Health and Safety Act, Issuing of Notices by Inspectors
Work Health and Safety Industrial Law Improvement Notice Reasonable Belief Test Duties of Principal Contractor External Review Under Work Health and Safety Act Issuing of Notices by Inspectors

Case Brief

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Parties

Lipman Pty Ltd

Applicant

SafeWork NSW

Respondent

Procedural Posture

External Review / Final Orders

Legal Issues

  1. 1 Whether the inspector could reasonably believe that Lipman had contravened a provision of the Work Health and Safety Act 2011 in circumstances that made it likely the contravention would continue or be repeated
  2. 2 Whether the improvement notice was validly issued under s 191 of the Work Health and Safety Act 2011

Ratio Decidendi

The Commission found that, as at 18 March 2021, the objective facts did not support a reasonable belief that Lipman had contravened a provision of the Work Health and Safety Act 2011 in circumstances making it likely that the contravention would continue or be repeated, because prohibition and non-disturbance notices in force barred further activity, and the evidence showed Lipman took immediate steps to prevent recurrence. Therefore, a precondition for issuing the improvement notice was not satisfied.

Court Disposition

external review upheld; improvement notice and internal review decision revoked

Orders

  • The external review is upheld.
  • The internal review decision made by the SafeWork reviewer following the application made by Lipman on 29 March 2021 is revoked.