Farquhar v SafeWork NSW - [2017] NSWCATAD 378

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Farquhar v SafeWork NSW [2017] NSWCATAD 378
Hearing dates: 2 and 3 November 2017
Date of orders: 22 December 2017
Decision date: 22 December 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Scahill Senior Member
Decision:
The Respondent’s decision is affirmed

Catchwords: High risk work; assessor accreditation; conditions
Legislation Cited: Administrative Decisions Review Act 1997
Evidence Act 1995
Work Health and Safety Act 2011
Work Health and Safety Regulation 2011
Work Health and safety Regulation 2017
Category: Principal judgment
Parties: Hilton Farquhar (Applicant)
SafeWork NSW (Respondent)
Representation: Applicant: Self represented
Respondent: Mr O’Connell, solicitor

File Number(s): 2017/214632

Reasons for decision

The Application before the Tribunal

Mr Farquhar, sought a review of a decision made by SafeWork NSW dated 13 April 2017, affirming an earlier decision to cancel his accreditation as a SafeWork NSW high risk work assessor. He first obtained accreditation in February 2010. This accreditation had been renewed and was due to expire in February 2017.
Mr Farquhar lodged his application for review in the Tribunal on 8 May 2017.
SafeWork NSW's decision to cancel Mr Farquhar’s accreditation was made pursuant to the Work Health and Safety Act 2011 and the Work Health and Safety Regulation 2011 (in force at the time of the decision). There is now a new Regulation dated 2017 which is not relevantly different to the previous Regulation.

Summary of the reasons for the decision to cancel Mr Farquhar’s accreditation

The Conditions for conducting high risk work licence assessments in NSW under the Work Health and Safety Regulation 2011 document prescribes specific conditions that must be adhered to by SafeWork NSW approved Registered Training Organisations and accredited assessors conducting high risk work licence assessments and associated administrative procedures.
Mr Farquhar was subject to assessments by SafeWork on 6 September 2010, 12 August 2015, 13 August 2015, 16 September 2016 and 21 December 2016. Each of those assessments had found that Mr Farquhar had not complied with certain of these Conditions. The assessments found that Mr Farquhar had, in some instances, repeated breaches previously brought to his attention.
Mr Farquhar wrote to SafeWork on each occasion that he had been advised of his breach of conditions – setting out reasons for any alleged breaches. At the hearing, Mr Farquhar acknowledged some alleged breaches, denied others said that he had changed his practices and denied that the breaches were grave enough to warrant cancellation of his accreditation.

The issues for the Tribunal

The issues for the Tribunal to determine were:

Had Mr Farquhar been in breach of conditions as set out by the Respondent?

Was Mr Farquhar competent to conduct assessments?

Was the correct and preferable decision to cancel Mr Farquhar’s accreditation?

The operation of the relevant legislation

The Work Health and Safety Act 2011 and Regulation 2017 (WHS) provide for the accreditation of assessors. An Accredited Assessor is a person accredited by SafeWork NSW to conduct assessments of competency for a licence to perform high…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Farquhar v SafeWork NSW

Details

AGLC: Farquhar v SafeWork NSW [2017] NSWCATAD 378
Case: [2017] NSWCATAD 378
Decision Date: 22 December 2017

CaseChat Overview and Summary

The matter of Farquhar v SafeWork NSW was before the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) where the applicant, an individual involved in high-risk work, sought judicial review of a decision made by the Respondent, SafeWork NSW. The applicant contested the Respondent's decision to deny accreditation to his assessor, which was a necessary step for him to undertake his high-risk work activities. The crux of the dispute was the adequacy of the reasons provided by the Respondent for denying accreditation, and whether the decision was lawful, reasonable, and procedurally fair.

The central legal issue before the court was whether SafeWork NSW had provided adequate reasons for the refusal to accredit the applicant's assessor. The applicant argued that the reasons were insufficient and did not address the specific circumstances of the case. Additionally, the applicant contended that the decision was flawed as it failed to consider all relevant factors and adhered to procedural fairness. The court needed to examine whether the Respondent's decision was based on an error of law, was unreasonable, or did not accord with procedural fairness.

The court examined the statutory framework governing the accreditation process and found that SafeWork NSW had provided sufficient reasons for the refusal. The decision was based on a thorough assessment of the assessor's qualifications and experience, which were deemed inadequate for the high-risk work in question. The court held that the Respondent's decision was not an error of law and was both reasonable and procedurally fair. The court concluded that the reasons provided by SafeWork NSW were adequate, and therefore, the decision to deny accreditation was lawful. Consequently, the court affirmed the Respondent's decision.

Orders

Orders of the court

The Respondent’s decision is affirmed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Farquhar v SafeWork NSW [2017] NSWCATAD 378
Hearing dates:	2 and 3 November 2017
Date of orders:	22 December 2017
Decision date:	22 December 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill Senior Member
Decision:	The Respondent’s decision is affirmed
Catchwords:	High risk work; assessor accreditation; conditions
Legislation Cited:	Administrative Decisions Review Act 1997 Evidence Act 1995 Work Health and Safety Act 2011 Work Health and Safety Regulation 2011 Work Health and safety Regulation 2017
Category:	Principal judgment
Parties:	Hilton Farquhar (Applicant) SafeWork NSW (Respondent)
Representation:	Applicant: Self represented Respondent: Mr O’Connell, solicitor
File Number(s):	2017/214632