Dare v SafeWork NSW [2021] NSWCATAD 12

Dare v SafeWork NSW [2021] NSWCATAD 12

The correct and preferable decision was to set aside cancellation and the five year disqualification because Mr Dare did not breach condition 12, was not obliged to volunteer his earlier unlicensed crane operation, and did not act unethically or without integrity; however, his disclosure of personal information in NSW notices of satisfactory assessment to WorkSafe Victoria was unprofessional and a technical breach of privacy obligations on assessors, justifying suspension but not cancellation or disqualification.

Jurisdiction
Australia
Judgment Date
20 January 2021
Procedural Posture
Administrative Review Application / External Review on the Papers of an Internal Review Decision Cancelling Accreditation and Imposing Disqualification
Outcome
Decision set aside and varied; accreditation suspended from 1 June 2020 until the decision date, with suspension served in full, and accreditation documents to be restored.
Legal Topics
['administrative Review' 'high Risk Work Licence Assessor Accreditation' 'cancellation and Suspension of Accreditation' 'conditions of Accreditation' 'disclosure of Assessment Records' 'unlicensed High Risk Work' 'determination Without Oral Hearing']
['administrative Law' 'work Health and Safety' 'privacy'] ['administrative Review' 'high Risk Work Licence Assessor Accreditation' 'cancellation and Suspension of Accreditation' 'conditions of Accreditation' 'disclosure of Assessment Records' 'unlicensed High Risk Work' 'determination Without Oral Hearing']

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Procedural Posture

Administrative Review Application / External Review on the Papers of an Internal Review Decision Cancelling Accreditation and Imposing Disqualification

Legal Issues

  1. 1 ['Whether the application should be determined without an oral hearing.' 'Whether Mr Dare breached condition 12 of the Conditions for conducting high risk work licence assessments in NSW by disclosing NSW notices of satisfactory assessment to WorkSafe Victoria.' 'Whether the note to condition 12 or condition 30 should have alerted Mr Dare to seek guidance before disclosing the NSW notices of satisfactory assessment to WorkSafe Victoria.' 'Whether Mr Dare was required to report his unlicensed operation in 2018 of a slew crane over 20 tons.' "Whether Mr Dare's conduct was unethical or unprofessional or showed a lack of integrity for an accredited assessor." 'Whether cancellation of accreditation and a five year disqualification should be set aside and replaced with a suspension.']

Ratio Decidendi

The correct and preferable decision was to set aside cancellation and the five year disqualification because Mr Dare did not breach condition 12, was not obliged to volunteer his earlier unlicensed crane operation, and did not act unethically or without integrity; however, his disclosure of personal information in NSW notices of satisfactory assessment to WorkSafe Victoria was unprofessional and a technical breach of privacy obligations on assessors, justifying suspension but not cancellation or disqualification.

Court Disposition

Decision set aside and varied; accreditation suspended from 1 June 2020 until the decision date, with suspension served in full, and accreditation documents to be restored.

Orders

  • ['Pursuant to Section 50(2) of Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with an oral hearing in this matter.' "The decision of SafeWork NSW to cancel Mr Dare's accreditation as a high risk work licence assessor and to disqualify him from reapplying for a period of 5 years is set aside." "In...