Yancoal Mining Services Pty Ltd v The Secretary NSW Department of Planning and Environment in the capacity as the NSW resources Regulator [2018] NSWIRComm 1044

Industrial Relations Commission New South Wales Medium Neutral Citation: Yancoal Mining Services Pty Ltd v The Secretary NSW Department of Planning and Environment in the capacity as the NSW resources Regulator [2018] NSWIRComm 1044 Hearing dates: 12, 15, 21 and 29 June 2018 Date of orders: 18 July 2018 Decision date: 18 July 2018 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Kite SC Decision: Application dismissed Catchwords: WORK HEALTH AND SAFETY – external review – jurisdiction - whether decision made by regulator Legislation Cited: Work Health and Safety Act 2011 (NSW) Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Right to Life Association (NSW) Inc v Secretary, Department of Human Services & Health (1995) 56 FCR 50 WorldAudio Ltd v Australian Communications and Media Authority (2006) 149 FCR 462 Category: Procedural and other rulings Parties: Yancoal Mining Services Pty Ltd (Applicant) The Secretary NSW Department of Planning and Environment in the capacity as the NSW resources Regulator (Respondent) Representation: Counsel: I Neil SC with S Callan (Applicant) K M Richardson SC with S Palaniappan (Respondent)

Solicitors: Seyfarth Shaw Australia (Applicant) McCullough Robertson (Respondent File Number(s): 2018/00172342

Judgment 1. The Commission has before it a preliminary question as to its jurisdiction to hear an application filed 1 June 2018, by which the applicant sought, pursuant to s 229 of the Work Health and Safety Act 2011 (NSW) ("the WHS Act"), an external review in respect of decisions it maintained the respondent had made: 1. to issue Prohibition Notice 108 ("PN 108"); 2. to issue Prohibition Notice 113 ("PN 113"); and 3. not to cancel or vary, pursuant to s 207 of the WHS Act, PN 108 and PN 113 (together "the prohibition notices"). 1. The respondent contended that the Commission lacked jurisdiction to hear the application because the respondent had not made any of those decisions. The respondent submitted that the prohibition notices had, contrary to prayers 1, 2, 4 and 5 of the application been issued by inspectors, not the respondent and the respondent had not yet made a decision in respect of the application to it under s 207 of the WHS Act as contended in prayer 3 of the application. 2. Following the taking of evidence, including from Chief Inspector Garvin Burns who issued PN 108, the applicant formally abandoned prayers 1, 2, 4 and 5. The jurisdiction to review then, depended upon prayer 3 of the application which is in the following terms: On the Undertaking set out below: 3. An order that the decision made by the Regulator on or about one June 2018 under s 207 of the Work Health and Safety Act 2011 (NSW) (WHS Act) declining to cancel: 1. Prohibition Notice 108; and 2. Prohibition Notice 113, (together 'relevant Prohibition Notices') be varied, to the effect that the relevant Prohibition Notices are cancelled. It is unnecessary to set out the detail of the undertaking.