Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011[2021] QIRC 306

GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011[2021] QIRC 306

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2021] QIRC 306

PARTIES: 

GJT Earthmoving Pty Ltd

(Applicant)

v

The Regulator under the Work Health and Safety Act 2011

(Respondent)

CASE NO:

WHS/2019/31

PROCEEDING:

Application for external review

DELIVERED ON:

6 September 2021

HEARING DATE:

11 and 29 April 2019

31 July 2020

26 October 2020

9-13 November 2020 inclusive.

MEMBER:

O'Connor VP

HEARD AT:

Brisbane and Townsville

ORDERS:

  1. The external review is dismissed.
  2. Pursuant to s 229E of the WHS Act, the review decision of 25 January 2019 is confirmed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – WORK HEALTH AND SAFETY – where application for external review of a decision to issue an improvement notice – where demolition of structures and removal of asbestos – whether inspector formed a reasonable belief that applicant contravened r 472(1) of the Work Health and Safety Regulation 2011 – whether improvement notice issued to incorrect entity – where identified asbestos not removed prior to the demolition – where asbestos waste not contained, labelled and disposed of at a site authorised to accept asbestos waste – where asbestos clearance certificate not produced after some removal of asbestos occurred – where asbestos debris remained on site – whether regulation applies to the applicant – whether applicant falls within the meaning of an asbestos removalist – whether applicant denied procedural fairness and natural justice in the process of developing the scope of works – determined inspector formed a reasonable belief applicant contravened r 472(1) of the Work Health and Safety Regulation 2011 – determined improvement notice issued correctly to applicant – external review dismissed.

LEGISLATION:

Work Health and Safety Act 2011 (Qld) s 20, s 171, s 191, s 208, s 229, s 229B, s 229E, s 268

Work Health and Safety Regulation 2011, r 458, r 472

CASES:

Dalliston v Taylor & Anor ICQ 017

George v Rockett (1990) 170 CLR 104

Lindores Construction Logistics Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2018] QIRC 061

Multiplex Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011 (No 2) [2019] QIRC 133

NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4

APPEARANCES:

Mr C. Richards for the Applicant.

Mr S.R. McLeod, QC directly instructed by Ms C-L. Godfrey, for the Respondent.

Reasons for Decision

  1. [1]
    On 28 February 2019 GJT Earthmoving Pty Ltd (the Applicant/GJT) filed an Application for Review of a decision by Work Health and Safety Queensland (WHSQ) to issue an Improvement Notice on 6 December 2018.  An Internal Review Decision dated 25 January 2019 affirmed the issue of the Improvement Notice.  The grounds of the Application state:
  1. GJT Earthmoving does not fall within the meaning of an Asbestos Removalist within the meaning of schedule 19 of the Work Health and Safety Regulations and cannot contravene regulation 472(1) Work Health and Safety Regulations and is not amenable to the Improvement Notice.
  1. The Improvement Notice l1053024 was issued to the incorrect party, and should appropriately be issued only to either David Wadley Commercial as the entity exercising control and management of the site at 189 Brewer Drive and all works conducted at the site or the estate of Brendan Buckland as the sub-contractor engaged to perform the asbestos removal works.
  1. GJT was denied procedural fairness and natural justice by not being allowed the opportunity to be involved in the process of developing a scope of works, despite being made solely responsible for complying with the scope both financially and practically.
  1. [2]
    The Improvement Notice issued by Inspector Karim De Ridder on 6 December 2018 stated the Applicant had contravened r 472(1) of the Work Health and Safety Regulation 2011 (WHS Regulation).  The identified contravention was as follows:

You have failed to ensure that asbestos waste is contained, labelled and disposed of at a site authorised to accept asbestos waste.  During a site visit to 189 John Brewer Drive, Bluewater on the 15/08/17, I observed and took samples associated with demolition and asbestos related activities conducted by GJT Earth Moving Pty Ltd during September 2015.  An analysis of the samples conducted by a NATA accredited lab showed that 7/10 samples were positive for asbestos containing materials (ACM).  Samples were obtained in the area where the 5 huts once stood at Lot 52 EP597 and associated rubble of the demolition found on near-by salt-flats.  Further investigation found that identified asbestos was not removed prior to the demolition, that an asbestos clearance certificate was not produced after some removal of asbestos occurred and asbestos debris remains on site.[1]

  1. [3]
    The Improvement Notice also set out the following directions for mandatory compliance as to the measures to be taken to remedy or prevent the contravention and referred to the "Queensland 'How to Safely Remove Asbestos Code of Practice 2011'":

A Class B or A Licenced Asbestos Removalist is required to remove the asbestos waste, and must ensure asbestos waste is contained, labelled and disposed of in accordance with the GHS at a site authorised to accept asbestos waste.  Refer to the document "Asbestos Containing Building Materials Technical Scope of Works Report" for Lot 52 - EP597 - 189 John Brewer Drive, Bluewater, QLD, 4814.

  1. [4]
    In addition, the Improvement Notice directed that the asbestos waste be removed before 6 March 2019.
  1. [5]
    Regulation 472(1) of the WHS Regulation provides for the safe disposal of asbestos waste.  Regulation 472(1) states:

472 Disposing of asbestos waste and contaminated personal protective equipment

  1. (1)
    Subject to subsections (2) and (3), an asbestos removalist must ensure that asbestos waste -
  1. (a)
    is contained and labelled in accordance with the GHS before the waste is removed from an asbestos removal area; and
  1. (b)
    is disposed of as soon as practicable at a site authorised to accept asbestos waste.
  1. [6]
    Section 191 of the Work Health and Safety Act 2011 (WHS Act) states an Improvement Notice may be issued if an inspector reasonably believes there has been a contravention.  Section 191 states as follows:

191 Issue of improvement notices

  1. (1)
    This section applies if an inspector reasonably believes that a person -
  1. (a)
    is contravening a provision of this Act; or
  1. (b)
    has contravened a provision in circumstances that make it likely that the contravention will continue or be repeated.
  1. (2)
    The inspector may issue an improvement notice requiring the person to -
  1. (a)
    remedy the contravention; or
  1. (b)
    prevent a likely contravention from occurring; or
  1. (c)
    remedy the things or operations causing the contravention or likely contravention.
  1. [7]
    The phrase 'reasonable belief' is not defined in the WHS Act.  However, reference is made to the approach taken by the High Court in George v Rocket[2] as to what amounts to a 'reasonable belief'.[3]  In George v Rockett the High Court observed:

When a statute prescribes that there must be "reasonable grounds" for a state of mind - including suspicion and belief - it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.  That was the point of Lord Atkin's famous, and now orthodox, dissent in Liversidge v. Anderson … That requirement opens many administrative decisions to judicial review and precludes the arbitrary exercise of many statutory powers... Therefore it must appear to the issuing justice, not merely to the person seeking the search warrant, that reasonable grounds for the relevant suspicion and belief exist …

It follows that the issuing justice needs to be satisfied that there are sufficient grounds reasonably to induce that state of mind. (References and citations omitted)[4]

  1. [8]
    A reasonable belief requires the existence of facts which are sufficient to induce the belief in a reasonable person.
  1. [9]
    The review under s 229 of the WHS Act is to be dealt with by the Queensland Industrial Relations Commission (the Commission) considering all the evidence before it.  Section 229(1) of the WHS Act states:

229 Application for external review

  1. (1)
    An eligible person may apply to the external review body for a review (an external review) of -
  1. (a)
    a reviewable decision made by the regulator; or
  1. (b)
    a decision made, or taken to have been made, on an internal review.
  1. [10]
    The powers of the Commission in determining the matter are detailed at s 229E of the WHS Act as follows:

229E Powers of commission on application

  1. (1)
    In deciding an application for a review, the commission may -
  1. (a)
    confirm the decision; or
  1. (b)
    vary the decision; or
  1. (c)
    set aside the decision and make a decision in substitution for it; or
  1. (d)
    set aside the decision and return the issue to the decision-maker with directions the commission considers appropriate.
  1. (2)
    If the commission acts under subsection (1)(b) or (c), the decision is taken, for this Act (other than this part), to be that of the person whose decision was the subject of the application.

Grounds

  1. [11]
    The Applicant submits three grounds of challenge to the Internal Review Decision in their Outline of Argument dated 13 August 2019:

Ground 1

the Regulation does not apply to the Applicant;

Ground 2

Improvement Notice directed to the incorrect party; and

Ground 3

the Inspectors' reliance on the scope of works was erroneous.[5]

  1. [12]
    In a further Outline of Argument filed on 1 September 2020 the Applicant submitted twentyone grounds of challenge as follows:

Ground 1

WHSQ was/is not necessarily the most appropriate jurisdiction for matters pertaining to the asbestos contamination of Landmark's "blue pines" and surrounding areas.

Ground 2

That the transfer of this case to the Townsville WHSQ office by the TCC may be linked to the possibly inappropriate closing down of the TCC's investigation of environmental destruction and illegal dumping by Landmark (and related notices previously issued to Landmark).

Ground 3

How the Inspector's "decision" was based on an inappropriate WHSQ designation of responsible entities.

Ground 4

The Regulation does not apply to the Applicant.

Ground 5

Notice directed to the incorrect party.

Ground 6

That the apparent "technical" pretext for issuing a 6/12/2020 (sic) notice to Gavin Jepson and GJT (i.e. Buckland later taking some of the ACM to the Bluewater dump as ordered by Wadley) was inappropriately as well as selectively applied.

Ground 7

The additional justification (re: "likely that the contravention will continue or be repeated") given by the Inspector for issuing the notice was not just unreliable but also has no reasonable basis.

Ground 8

The Inspector's reliance on the scope of works was unreliable as well as erroneous.

Ground 9

How Wadley's attempt to conceal his repeated failure to properly appoint authorised asbestos removalists (and develop a proper asbestos removal and disposal plan as also required under WHSQ guidelines) is clearly linked to his related "cover up" of illegal demolitions and expulsion of residents.

Ground 10

Serious discrepancies in his issuance of improvement notices also contradict the Inspector's final decision (clearly the Inspector had no reasonable basis on 15/8/2017 to come to any judgment in relation to Gavin Jepson and GJT when his investigation had barely begun).

Ground 11

The Inspector's section 171(2) justification for his "final decision" on the 6/12/2018 was not just unreliable but should have always been over-ruled in any case by the initial 2017 429(2) Improvement Notice issued to Landmark and Wadley.

Ground 12

That the Inspector's investigation was so influenced by the interventions and influence of his WHSQ supervising colleague from Brisbane (Dean Coggins) that it seems to have been a key factor in his "reversing" his initial determination (against Landmark and Wadley) onto Jepson and GJT.

Ground 13

That WHSQ is directly linked to attempts to obstruct access to "52 documents" cited by the Inspector in his investigation of the Toolakea asbestos contamination case.

Ground 14

The inappropriate WHSQ "evasion" of several non-RTI related complaints related to this case by (sic) insisted that these had been "bundled" into an information commissioner response to the OIC's RTI external review (i.e. even if the OIC clarified that this could not happen and was the WHSQ/OIR responsibility).

Ground 15

Failure by the Inspector to really interview either Jepson or his son Jesse in almost 18 months of "investigation".

Ground 16

How the Inspector selectively misrepresented the evidence of not only his only firsthand witness interviewed but his key "independent witness [Laurie Bowater]".

Ground 17

The role that the "substantial conflicts of interest" by Jepson's solicitors (Keir Steele) played in seriously compromising his legal representation at the time of the investigation (and also in the internal review as well).

Ground 18

That Gavin Jepson did not get a fair go also with the OIR's internal review of the WHSQ's Improvement Notice decision.

Ground 19

That the people ultimately responsible for the asbestos contamination at Toolakea (Landmark - aka Rimbanun Hijau) have a regular and extensive international reputation for not just "reckless profiteering", environmental damage and exploitation of local communities overseas - but also extensive and regular fraud and corruption claims.

Ground 20

That there were also serious vested interests involved at a local and state governance level that may have contributed to inappropriate "influencing" possibly being brought to bear in this case.

Ground 21

Just about all the evidence provided by the Inspector is either unreliable or might be reasonably found to have been applied within a wrong or inappropriate framework - and therefore cannot really have been a basis for any "reasonable belief" about the role of Gavin Jepson especially (along with GJT).[6]

  1. [13]
    The Applicant submits the Inspector did not have a reasonable basis for "believing" the Improvement Notice he issued accorded blame reflecting a fair and appropriate investigation and decision.  The Applicant claims there has been an inappropriate shifting of blame from Landmark and David Wadley to itself.
  1. [14]
    In support of the application the Applicant relies on the affidavit of Gavin John Jepson, Director of GJT sworn on 27 February 2019.  The Applicant provides earthmoving, excavation, demolition and other heavy machinery services in the Townsville and surrounding region.
  1. [15]
    In his affidavit Mr Jepson deposes that at no stage before, during or after the works were conducted at 189 John Brewer Drive, Bluewater (the Bluewater site) by the Applicant, did the Applicant hold itself out to be an asbestos removalist capable of removing the asbestos containing material (ACM) as required by David Wadley Commercial (DWC).
  1. [16]
    The only person engaged by the Applicant was Brendan Buckland (now deceased) as a sub-contractor to the Applicant.  He was engaged by the Applicant with the approval of Landmark, through DWC to conduct the removal of the ACM.
  1. [17]
    The Respondent submits the Applicant's contention that an "asbestos removalist" does not require the possession of an approved licence is incorrect.  Regulation 458(1) of the WHS Regulation states as follows:

458 Duty to ensure asbestos removalist is licensed

  1. (1)
    A person conducting a business or undertaking that commissions the removal of asbestos must ensure that the asbestos removal work is carried out by a licensed asbestos removalist who is licensed to carry out the work.
  1. [18]
    The Applicant contended that the Improvement Notice was issued on the assumption the Applicant was responsible for the removal of the asbestos during the demolition and such assumption was not open on the evidence.  The Respondent submits the evidence demonstrates that the Applicant was in fact the responsible entity for the asbestos removal and disposal:
  1. (a)
    DWC was engaged as Landmark's property manager and arranged for the demolition of huts located on Lot 52, 189 John Brewer Drive, Bluewater;
  2. (b)
    DWC obtained a report commissioned by Watts Constructions, from Envirohealth which identified two structures contained ACM;
  3. (c)
    DWC subsequently tendered for quotes for the demolition of the huts and asbestos removal;
  4. (d)
    the applicant provided a quote;
  5. (e)
    DWC accepted the quote from the Applicant and the Applicant was engaged to undertake the demolition and removal of asbestos, however no formal contract was put in place;
  6. (f)
    the Envirohealth report was provided to the applicant prior to the demolition;
  7. (g)
    the applicant advised DWC that Mr Buckland, an asbestos licensed contractor, would be onsite to remove the asbestos; and
  8. (h)
    Mr Buckland subsequently removed ACM from the site.[7]
  1. [19]
    Mr Jepson said DWC is the only entity with direct management and control of the site at 189 John Brewer Drive, Bluewater.  Even though there was no formal contract entered into between the Applicant and DWC, the terms of the contract were such that the Applicant was subject to the specific and direct instructions, direction and supervision of DWC, through David Wadley in relation to the works at the site, including but not limited to:
  1. (a)
    the engagement of Brendan Buckland, which was after consultation and approval from David Wadley, DWC, through Mr Wadley for the removal of identified ACM;
  2. (b)
    DWC, through David Wadley directed the manner in which the works were conducted by instructing the applicant that the removal of ACM would occur after the demolition of the huts;
  3. (c)
    DWC, through David Wadley provided specific instruction to the applicant that once the buildings at the site were knocked down, the debris was to be left where it fell until later directed by DWC;
  4. (d)
    DWC, through David Wadley subsequently directed Brendan Buckland, after the demolition, that the ACM could be removed;
  5. (e)
    DWC, through David Wadley provided all instruction, direction and supervision to Brendan Buckland when the ACM was to be removed;
  6. (f)
    DWC, through David Wadley, had the control and supervision of the site and the applicant was led to believe that all necessary licences, approvals and the Asbestos Removal Control Plan were completed and obtained by David Wadley;
  7. (g)
    DWC, through David Wadley provided specific instruction, direction and supervision to stockpile material on the salt flats near the site;
  8. (h)
    DWC, through David Wadley directed the applicant to bury debris at the site and further confirmed to the applicant that all such instructions and directions were authorised because DWC had secured necessary approvals from the Townsville City Council.[8]
  1. [20]
    Throughout the investigation process or the subsequent formulation of the plan of remedial works (scope of works), the Applicant states he was not approached for consultation, discussion or any comment in relation to the formulation of the scope of works, what was to be contained in any scope of works or the identity of any relevant entity to carry out a scope of works.[9]
  1. [21]
    Mr Jepson said he only became aware that he would have to comply with the scope of works and have the sole financial burden of complying with the scope of works when the Improvement Notice was issued to him on 6 December 2018.[10]
  1. [22]
    It is apparent DWC engaged the Applicant for the demolition of the huts and removal of asbestos.  The Applicant then engaged Mr Buckland to remove the asbestos from the relevant huts.[11]
  1. [23]
    The Applicant submitted that in approximately March 2015, David Wadley, DWC obtained a report from Envirohealth Consulting Pty Ltd (Envirohealth Report) regarding the presence of ACM in the structures at 189 John Brewer Drive, Bluewater, approximately 30 km north of Townsville city.  This report identified two structures containing ACM, with three structures showing no traces of ACM.[12]
  1. [24]
    In approximately June 2015, DWC sought quotations for the demolition of the subject structures at the Bluewater site.  The Applicant provided an email quotation dated 17 June 2015 which states:

 "Good morning

 As per our conversation please find below Quotation for work to be carried out.

Demolition and removal of houses, Estimate time 5-7 days

This quote is based on a hourly rate as per conversation;

 Labour x 2 $  45 per hour

 Excavator $125 per hour

 Loader $130 per hour

 Tippers x 2  $  80 per hour

 These prices are excluding GST.

 I will send a copy of the Asbestos Ticket through for your records.

 Please don't hesitate to call me if any more information is required.

 Kind Regards

 Gavin Jepson

 GJT Earthmoving".[13]

  1. [25]
    The Applicant was engaged to undertake the work.  There was no contract or formal written engagement to conduct the works.
  1. [26]
    The Envirohealth Report was provided to the Applicant prior to the demolition.  The Applicant engaged Mr Brendan Buckland to remove the ACM and notified DWC that Mr Buckland was engaged for this purpose.
  1. [27]
    The Applicant commenced demolition of the structures at the Bluewater site in September 2015.  The demolition was observed by DWC.  The Applicant says that Mr Buckland was instructed to remove the asbestos indicated in the Envirohealth Report and did some works in the structures prior to demolition in reliance on the report.
  1. [28]
    It is contended that during the demolition process, DWC directed the Applicant to bury debris of the structures in situ.  DWC represented to the Applicant that the Townsville City Council (the Council) had approved this burial of the rubble.  Part of this process was observed by Mr Laurence Bowater, a retired construction manager who worked in the construction industry throughout his working life and had been going to the area for approximately 17 years.[14]  Mr Bowater reported an allegation of illegal dumping to the Council.  The Council conducted an investigation and issued directions and show cause notices, however, took no prosecution action.[15]
  1. [29]
    On 23 July 2018 Inspector De Ridder issued an Improvement Notice to DWC for the identification and scope of works development for the asbestos contamination which was resultant after the demolition works occurred.
  1. [30]
    On 15 August 2018 Inspectors De Ridder and Coggins attended the Bluewater Site and identified the location of the demolition area and rubble heaps of demolition waste.  Ten samples were taken from two main sites identified as the "Salt Flats" and the "beach foreshore".  Results showed seven samples tested positive for chrysotile asbestos.  Three positive samples were located at the Salt Flats rubble location and four were located at the beach foreshore area of the property.
  1. [31]
    On 6 December 2018 Inspector De Ridder issued an Improvement Notice to the Applicant for remediation of the site of any asbestos contaminated demolition debris.
  1. [32]
    The Respondent submits the Applicant's purported denial of procedural fairness whereby the Inspector's direction requiring remediation pursuant to the scope of works was erroneous,[16] should be rejected.[17]
  1. [33]
    In response to the Applicant's claim there is no evidence to support the Inspector's conclusion the non-buried pile of debris related to the destruction of the huts or any activity, the Respondent assumes this refers to the "associated rubble of the demolition found on near-by salt-flats" as stated in the Improvement Notice.  The Inspector formed the "reasonable belief" the associated rubble was related to the demolition process.[18]
  1. [34]
    As to the Applicant's contention the "burial of debris was at the direction of DWC, and may not have been consistent with Local Council regulation",[19] the Respondent submits if it is sought to be inferred that DWC gave a direction to bury the asbestos, any such inference is contrary to the evidence.  DWC had requested permission from the Council to bury debris on site and were advised that provided the materials were not contaminated this could occur.  This was checked with the Applicant and it was for the Applicant to remove and dispose of the asbestos in a lawful manner following proper procedures.[20]
  1. [35]
    The Applicant submitted that Mr Wadley as a registered real estate agent of Queensland who contracted an accredited asbestos removalist (Watts Constructions) to test the buildings for asbestos prior to the demolitions, failed to follow up as required (and ignored using the very asbestos removalist who identified the asbestos present to remove it).  This should have led the Inspector to recognise and acknowledge that Mr Wadley and Landmark failed their overall responsibility for the site.[21]
  1. [36]
    In claiming the regulation does not apply to the Applicant, it is submitted the Improvement Notice was issued based on the assumption the Applicant was the person responsible for the removal of the asbestos during the demolition.  The Applicant challenges this assumption.
  1. [37]
    The Applicant submits that on the evidence before the Inspector it was not open to find that the Applicant was engaged in a "business or undertaking" of asbestos removal and on that basis the Applicant was not a person who could contravene r 472(1) of the WHS Regulation.[22]
  1. [38]
    The Applicant claims the Improvement Notice was issued to the wrong party for the following reasons:
  1. in other words, Wadley for Landmark held the duty to ensure the Toolakea Blue Pines site was safe and the requirements of the Act were met but failed to do so;
  2. critically, it seems, the Applicant was only informed of the presence of ACM after the initial demolition of three houses by his son Jesse under Wadley and Landmark's supervision;
  3. in order to form the reasonable belief the Applicant was liable as the asbestos removalist, the Inspector had to consider that both David Wadley and Landmark (RH) were exempt from liability for contraventions of the Act by virtue of engaging a third-party to conduct the removal work.  This reasoning in (sic) incongruous; and
  4. it is not reasonable, from the evidence before the Inspector, to conclude the Applicant was in contravention of the Act for the failure to ensure adequate removal of the ACM.[23]
  1. [39]
    The Applicant submits that Mr Buckland as a friend of Mr Jesse Jepson agreed to help out in the second demolition and, "he was naively unaware that he was expected to collect a dump receipt … also that this work should have been by a licenced removalist".[24]
  1. [40]
    The Applicant submits the Inspector's direction was based on the scope of works prepared by Mr Wadley and such reasoning is both unreliable and erroneous due to lack of evidence to establish the Applicant is liable to remediate any or all areas.  The burial of material was at the direction of Mr Wadley and the scope of works was further tainted by Mr Wadley's (and also Landmark's and Keir Steele's) conflict of interest.[25]
  1. [41]
    The Applicant claims there was a failure by the inspector to interview either Mr Jepson or his son during the 18 months' investigation.  Also, the inspector misrepresented the evidence of his key independent witness, Mr Bowater who lived in a house adjacent to the Blue Pines houses on a separate area of crown land and paid rent to Mr Wadley for many years to get access to the John Brewer.[26]
  1. [42]
    It is submitted by the Applicant there are conflicts of interest by his Keir Steele solicitors who were representing Landmark at the same time as the Inspector's investigation in a matter directly linked to the Blue Pines site.  In all this they failed to tell him about it until effectively the investigation was completed and the Inspector was ready to notify him that he was being blamed and would have liability to remediate the site.[27]  There were four items in particular which misrepresented the situation:
  1. (a)
    engagement For Work including Demolition and Removal of Asbestos;
  2. (b)
    engagement of Asbestos Removal - 'our client confirms that GJT did engage Brendan Buckland to conduct the removal of the asbestos material';
  3. (c)
    Brendan Buckland and Asbestos Removal Licence; and
  4. (d)
    who provided the Report?[28]
  1. [43]
    The Respondent submits the Applicant's contention that it was unreasonable for DWC to mandate the scope of the remediation of the Bluewater site and that it had a conflict of interest in so doing is entirely irrelevant.[29]
  1. [44]
    In response to the 21 grounds of appeal submitted by the Applicant in their submissions on 31 August 2020, the Respondent states these issues are without substance, unfounded, previously addressed, baseless, irrelevant, unreliable, inaccurate or false.  The Improvement Notice was not issued until 6 December 2018 and there has never been any injustice to the Applicant.  The matter is a hearing de novo at which time the Applicant is at liberty to demonstrate why the Inspector's decision is wrong.[30]

Evidence

  1. [45]
    In his opening address, Mr C. Richards representing the Applicant, contended that Mr De Ridder, the Inspector, failed to properly question the Jepsons to ascertain their side and to provide clarification about what happened and the sequence of events.[31]
  1. [46]
    Mr Richards, a semi-retired academic who does consultancies, provided evidence to the effect that he has no relationship with the Applicant.  He stated, "the events that happened with the Toolakea asbestos contamination … overlapped with the same people with events involving my mother and her property at Moongabulla which is … another satellite city of Landmark".[32]
  1. [47]
    In his evidence Mr Jesse Jepson stated his current occupation is excavator driver and he does earth moving such as building dams, roads, subdivisions etc. as part of the family earthmoving business.  He said that he had no experience in the past with building demolitions involving asbestos removal.  In this matter his father provided instructions from Mr Wadley by phone, and he said that he was not aware of asbestos on site either before the main demolition of the four huts on 3 September 2015 or the clean up from 13-21 September 2015.[33]
  1. [48]
    It was the evidence of Mr J. Jepson that he first became aware from his father there was asbestos in the huts after they had been demolished and cleaned up.  When he demolished the huts on 3 September 2015, he claims to have been under the direct supervision of David Wadley who was on the site.[34]
  1. [49]
    The Commission was told that on 21 September 2015, Mr J. Jepson under direct supervision of Mr Wadley dug a large pit on the edge of Toolakea Beach and was given instructions to, "… put whatever was left in the pit because the next day was the inspection and everything had to be cleaned up".[35]  In cross-examination, Mr J. Jepson agreed this was correct, however he denied Mr Wadley added, " … to make sure that what was put in the pit was not any asbestos related products".[36]
  1. [50]
    In his evidence in chief Mr J. Jepson said that Mr Brendan Buckland, a friend of his who assisted with the cleanup for a couple of days, was employed and paid as a labourer.  As to whether Mr Buckland was an accredited asbestos removalist he stated:

Did Mr Buckland ever tell you that he was an accredited asbestos removalist? --- No.

That had some sort of a ticket? --- No.

He never told that to you.  Did he ever have a formal agreement with you in relation to GJT or you personally to assist in responding to Mr Wadley's request for you to take asbestos to the Bluewater Dump? --- No.  Well, we - he used to give me a hand from time to time just with the cattle and that, and we spoke to - we were speaking about it one night - about what David Wadley was saying about the contamination, and he said that he had done a little reno job before, and he took some sheets of asbestos to the dump and didn't have any trouble with it.  So ---

This is domestic, not commercial? --- Yeah, just a domestic - just a reno on a house.  So [indistinct] I didn't know [indistinct]

So to be clear, this would be January 2016? --- Yes.[37]

  1. [51]
    During cross-examination, Mr J. Jepson said that was the first time they had ever done any demolition and that Mr Wadley ordered him to, " … just knock them down.  Demolish them".[38]  Two weeks later under instructions from his father and again in the presence of Mr Wadley he was told to, "[r]emove all the huts and take them to the mudflat and they was being stored there for road base or for some reason".  Mr J. Jepson agreed no material went offsite and that the trucks carried all the material from the huts to the mudflat which is approximately 800 metres away because Mr Wadley wanted it there.[39]
  1. [52]
    Mr J. Jepson in cross-examination said:

I suggest to you that Mr Wadley never directed you or instructed you to dump any of the demolished material from the huts on the mudflats? --- He did.

Right. Okay.  Now, then you said that a hole was dug to put the demolished material in.  Is that correct? --- Yes, that was the last [indistinct]

Right.  Okay.  So, that's separate to, on your evidence, your recollection, the demolished material being deposited just on the mudflats? --- Yeah.  Those four houses went to the ---

Right? --- mudflats.[40]

  1. [53]
    Mr J. Jepson went on to say, "he [Mr Wadley] said to demolish the fifth and he said, dig a pit, it's all good, he's sorted it all out, dig a pit there and put the house in the pit".  Counsel for the Respondent suggested, "that did occur, but with the qualification that he instructed you … that no asbestos related products - material - be buried in the pit".  Mr J. Jepson said he did not say anything about asbestos and that whatever was demolished had to be dumped on the mudflats.[41]
  1. [54]
    Ms Toni Mitchell was employed by the Applicant as the bookkeeper[42] and administrative assistant[43] for approximately nine years.  She said that the Applicant has not ever been involved before in any kind of building demolitions especially any kind of asbestos demolition or removal.  It was her evidence that the Applicant, "had an agistment agreement … on the property … he didn't pay … he did improvements to the property".[44]
  1. [55]
    Ms Mitchell said the Applicant was asked by Mr Wadley to demolish houses at Toolakea, Blue Pines and that it was not a contracted job.  The Applicant was asked to take the machines down and demolish the houses and she said that she typed the invoice for demolishing the houses only.[45]
  1. [56]
    Ms Mitchell's evidence was that Mr Buckland was employed for a two week period as a labourer and he was paid the same as the other workers.
  1. [57]
    Ms Mitchell said she went to the initial appointment with Mr Gavin Jepson's solicitor as Mr Jepson has, "very limited literacy.  He doesn't read or write very well at all.  And at that point, he had severe cataracts and could not read because of his eyesight, as well".[46]  In cross-examination, Ms Mitchell said that Mr Jepson "has very, very limited knowledge.  He has no comprehension when it comes to reading and writing the written word.  So yes.  I do try and help him a little bit when it comes to his business".[47]
  1. [58]
    In cross-examination as to whether she prepares quotes for the Applicant, Ms Mitchell said, "Well, we don't actually quote --- because we've never had to quote on a job".  Most of his work is with a large company and there is a rolling contract.  Other than that, if he has to give someone a price, he will know how many machine hours and he will work out the cost and Ms Michell will send an email.[48]
  1. [59]
    Mr Gavin Jepson, Director of the Applicant, gave evidence that his primary income is farming, and his main business is an earthmoving company which he formed about two years prior.  He told the Commission that he has never been an asbestos removalist or undertaken any work involving asbestos demolition or removal; that he knows nothing at all about property demolition requirements; or asbestos removal requirements and standards.[49]
  1. [60]
    Mr Jepson finished his schooling at the completion of grade 10 and described his ability to read and write as "[n]ot very well."[50]  A couple of years prior to the subject of these proceedings, he had an eye operation on both eyes which made it hard to read, although he can read a little bit.  He said he trusts other people including Ms Mitchell to act on his behalf.  He said he was brought up on the land and, "a man's word is a man's word so you can … always had it as face value".  In relation to all the events, this is what he did.[51]
  1. [61]
    In his evidence Mr Jepson said he knew Mr Wadley for around 25 years. In that time, " … I was to do work for - in lieu of agistment for the cattle … and whatever else had to be done sort of thing … a lot of clean up and stuff like that.  And that was in lieu of payment of the lease … no money ever changed hands or anything like that.  It was just work".[52]
  1. [62]
    In cross-examination, Mr Jepson agreed that he had invoiced DWC the sum of $26,510 for works which he said was to hire machinery being the excavators, trucks and the labour for the blokes and the fuel, etcetera.  He said that was the only bill he gave him and the rest was as a favour so he could keep cattle there.[53]  He said in demolishing the huts he did not quote, it was not a contract and it was not a tender.[54]
  1. [63]
    Mr Jepson agreed in evidence that the 11th of September was the first mention by Mr Wadley of any asbestos inside the huts.  Mr Jepson said in that discussion about the asbestos, "[h]e just said to me that there was bugger all in it.  It was only minor pieces of asbestos, and there was not much to worry about".  This was the same day Mr Wadley gave him the documentation.[55]
  1. [64]
    In cross-examination, Mr Jepson disagreed Mr Wadley had provided the document from Envirohealth setting out that two of the huts contained asbestos-detected products prior to the demolition works actually being undertaken.  Mr Jepson said it was two days prior to the clean-up.[56]
  1. [65]
    Mr Jepson said he was not on site at the time of the demolition.  He said when Mr Wadley was not on site, he would contact him with instructions about what he wants the men to do and when Mr Wadley was on site he would just give them instructions.[57]
  1. [66]
    In his conversation with Mr Wadley about the removal of asbestos, Mr Jepson said "[t]hat's when he said to me - about what we're going to do about it, but I said to him … I can't do anything about it because it's - now that I've found out from Environmental Health that it's too big of a deal for me to do anything about it".  When Mr Wadley asked him to remove it Mr Jepson said, "I can't do it because I'm not an asbestos removalist".[58]
  1. [67]
    In cross-examination Mr Jepson said, "Brendan Buckland never told me he had an asbestos ticket.  He was a builder by trade, and he told me that he had done a couple of little reno jobs, and he had taken asbestos to a dump wrapped in plastic once before, as a little reno house job … [t]hat's the only thing of asbestos that I knew that he had done … I never said he was an asbestos removaller".[59]
  1. [68]
    In relation to the receipt for landfill from Bluewater Landfill, Mr Jepson said as far as he knows Mr Buckland took it out there.  Mr Jepson said he did not ask Mr Buckland to get a receipt until Mr Wadley asked him where the receipt for the dumping was.  Eventually a receipt was produced, and Mr Jepson took it to the Council.  He did not check the date on that receipt was 2015.  Mr Wadley questioned where the receipt came from and Mr Jepson said that's how he found out that it was falsified.[60]
  1. [69]
    Mr Jepson said that Mr Waetford from the Townsville City Council raised with him that the receipt had been falsified.  At the same time Mr Waetford kept asking if Mr Buckland had an asbestos ticket and Mr Jepson said he did not know.
  1. [70]
    It was the evidence of Mr Jepson that he told Mr Waetford, a couple of months before he got charged, he would implement a remediation plan:

I said to him that I'll try and do something to help clean up.  And I went and seen (sic) him, and John Waetford - met with John Waetford … about it.  So and that's when he said to see - try and ring Environmental Health, get some sort of a plan happening to be able to do the clean-up.  And then that's when I got Sharon, who was the environmental inspector.

… [s]he come (sic) out, she had a look, she said that - that the asbestos that was there was only minor stuff, but there's asbestos there and it will take quite a lot of money for me to do it.  And at the time, out the flat there was very wet, so there was no way of getting a machine … .[61]

  1. [71]
    After speaking with Sharon Kratzmann from Environmental Health, Mr Jepson said, "[i]t was too big to … if it's too big, you need someone with an asbestos removalist ticket to go out there to do the job".  Then Sharon said, "there was no way I could help".  When Mr Wadley kept ringing him Mr Jepson said, "Well, not that I don't want to help, but I can't do the job because I'm not accredited to do the job".[62]
  1. [72]
    Mr Jepson went on to say to Mr Wadley and Mr Waetford, "I was trying to get around the way of being unable to remediate the job.  But there was no way I could do it … without being able to get someone out there that … three or $4,000 to do the job, I couldn't afford that.  So that's why I said to Dave I can't do it".[63]
  1. [73]
    A Notice to Produce Documents and Answer Questions was issued on 22 January 2018 pursuant to s 171 of the WHS Act.  In respect of the Notice, Mr Jepson attended on the offices of Keir Steele solicitors to prepare a response to the Notice on GJT's behalf.
  1. [74]
    In cross-examination, Mr Jepson told the Commission the following:

MR McLEOD:

Right.  Okay.  And that notice required you, as it sets out, to provide certain answers to questions.  Okay?  Now, was it the case, upon you receiving the notice, you went to see Mr Paul Sterling, who is now working at the firm now known as Keir Steele Lawyers?

MR JEPSON:

That's when we - that's when I got the letter, was there.

MR McLEOD:

Right. Okay.  So did Mr Sterling ask you to come in and have a meeting with him?

MR JEPSON:

Yep.  Yes.

MR McLEOD:

And was the purpose of the meeting, as it transpired, to discuss certain aspects of the 171 notice and the questions that were raised in the notice itself?

MR JEPSON:

Yes.

MR McLEOD:

And did you go with anyone else to that meeting with Mr Sterling?

MR JEPSON:

No.

---

MR McLEOD:

Your answers, explanations? - - - explanation as to what happened. Version of events?

MR JEPSON:

Yes.

MR McLEOD:

Okay. So were you providing instructions to Mr Sterling in relation to the 171 notice in order for Mr Sterling to respond on your behalf back to the inspector in respect to the notice?

MR JEPSON:

I was telling him my side of the story, yes.

MR McLEOD:

Right.  Okay. And I assume you were telling him the truth when you were giving your - - -?

MR JEPSON:

No, of course  I am.  I'm not a liar.[64]

  1. [75]
    Mr Jepson accepted that he was engaged to demolish the huts but denied that he was also engaged to remove the asbestos.  In particular, he denied that he had engaged Mr Buckland to remove the asbestos.
  1. [76]
    In cross-examination, Mr McLeod referred Mr Jepson to the responses to each of the questions contained in the s 171 Notice to Produce and his responses as recorded in the letter of Keir Steele Lawyers (Keir Steele) dated 5 February 2018.
  1. [77]
    Mr Jepson denied saying the following statements contained in paragraphs 2, 5, 7, 8, 13, 17 and 20 of his solicitor's letter.[65]

 2. Engagement of Asbestos Removal

Our client confirms that, GJT did engage Brendan Buckland to conduct the removal of the asbestos material.

 5. Brendan Buckland and Asbestos Removal Licence

Our client instructs Brendan Buckland was engaged with the approval of Landmark through David Wadley for the removal of the asbestos material as he was well known to our client as a certified asbestos removalist.  Our client requested a copy of Mr Buckland's licence, however after numerous requests, he did not obtain a copy.

  7.  Who Provided Report? [Report prepared by Watts Construction Pty Ltd which identified that asbestos was present in the huts]

Our client instructs that he was provided with the documents referred to in the previous questions by David Wadley.  These documents were provided (2) days prior to the demolition of the huts.

  8. How Did GJT Ensure All Asbestos Was Removed Prior To Demolition?

Our client instructs that GJT was directed by David Wadley to remove the Asbestos material identified in the documents provided to GJT after the demolition of the huts.  The Asbestos identified in the material provided to GJT was then removed later by Brendan Buckland at the direction of David Wadley.  Materials were not removed at the time of demolition because our client instructs they were receiving death threats from local residents, which require security and Police presence to keep those in attendance safe.

  13. Demolition Debris

Our client instructs that GJT was directed by David Wadley to stockpile the materials on the flats located near the huts. Our client instructs that the debris was removed and taken to the dump. Our client instructs that the asbestos material was removed by Brendan Buckland at the direction of David Wadley and taken to the old brick works and dumped by Brendan Buckland. Our client instructs that GJT was directed by David Wadley on 21 September 2015 to bury any remaining material where the demolition work occurred because representatives from Landmark were coming to inspect the property on 22 September 2015. David Wadley informed our client that he had the approval from the Townsville City Council for the burial of the debris.

  17. Notification of Asbestos Containing Debris

Our client instructs that he was made aware that asbestos was contained in the debris approximately six (6) months after the demolition works occurred. Our client was informed that asbestos material was contained in the debris by David Wadley. Our client instructs that he contacted the Townsville City Council Environmental Health Department after receiving this notification from David Wadley and discussions with the Council were later taken over by David Wadley.

  20. Clean Up Work Since Demolition

Our client instructs that is not aware of any clean up works which have occurred at the huts since the demolition was completed. Our client has been denied access to the site since the demolition works were completed.

  1. [78]
    He continued to deny actually saying other content in the letter and said he was eventually denied access to the site after he was going against David Wadley saying that it was his responsibility.  This was around the end of July 2016 when the agistment arrangement was terminated.[66]  Mr Wadley said in cross-examination that he terminated the agistment agreement.[67]
  1. [79]
    In referring to the letter of 5 February 2018 during cross-examination, Mr Jepson said he did not remove any asbestos and did not engage Mr Buckland to remove any asbestos as stated.  He repeated Mr Buckland was engaged as a labourer and not an asbestos removalist.  After numerous requests he couldn't obtain any information or a document from Mr Buckland evidencing that he had an asbestos ticket.[68]
  1. [80]
    In further cross-examination, Mr Jepson admitted asbestos products were subsequently removed by Mr Buckland as a way to help out on the property, "[w]hen we got the Watts report, there was just little bits that were around at the tiles down on the mudflat, and that bit there Brendan went and grabbed, wrapped it in plastic and took it to the dump [Bluewater Landfill]".  Mr Buckland eventually provided a receipt from Bluewater Landfill for Mr Wadley.  Mr Jepson said he was unaware at the time someone had to be properly qualified to undertake that task.[69]
  1. [81]
    Mr Jepson was referred to his email dated 1 June 2016[70] to Mr Waetford at the Council with the subject "Re:  Proposed site remedial plans".  In cross-examination he said, "I was trying to do a plan to what needed to be done to clean the debris up, and to the plan that we had, Sharon had told me was the excavator, the - the trucks, the blokes with the suits . . . , so I couldn't afford to do that.  And then when I said - David Wadley kept saying to me, '[y]ou've got to go and clean it up' and I said, '[f]or one, David, I cannot do it because I am not an asbestos removalist, and, two, I cannot afford it' and that's when he said, 'I hope your insurance will pay for this'."[71]
  1. [82]
    In cross-examination, Mr Jepson was referred to another email of 17 June 2015 from him and sent to Ms K Lyons (Mr Wadley's secretary) setting out a Quotation for work to be carried out for the demolition and removal of houses and sending a copy of the asbestos ticket.  Mr Jepson reiterated that no quote was given to Mr Wadley[72] and said he had no idea and cannot explain why that would have been sent by Ms Mitchell.[73]
  1. [83]
    In August 2016 approximately a year after the demolition works took place Mr Jepson went to see a solicitor, Mr Paul Sterling at MacDonnells Law as GJT was in dispute with Landmark Pty Ltd as to who was liable for what had gone on in respect to the demolition works. 
  1. [84]
    During cross-examination, Mr Jepson maintained that he was given the Watts Construction Report two days prior to the clean-up.  He provided the Report to his solicitors.
  1. [85]
    Mr Jepson was referred to his solicitor's letter forwarded to Dillon Bowers Lawyers on 4 August 2016, and in particular, the reference to "Asbestos Issues".  Mr Jepson told the Commission that this was the first time he had seen the letter.  He disagreed with the points set out in that correspondence claiming they were not the instructions he gave to his solicitor.[74]
  1. [86]
    In the letter of MacDonnells Law of 4 August 2016 it is stated:

Our client acknowledges that it was aware that the 2 huts contained asbestos-containing material.  Consequently, it engaged a Consultant - Brendan Buckland to ensure the safe removal of the asbestos in those 2 huts.

Our client instructs that, consistent with his knowledge of the presence of asbestos in 2 of the huts, he arranged for his Consultant to remove the asbestos-containing material prior to the commencement of the demolition works.  The rest of the demolition work was then undertaken.[75]

  1. [87]
    In referring to his solicitor's (Keir Steele) letter of 9 April 2018 to Inspector De Ridder, Mr Jepson said:

We said this again yesterday and I - I've said it over and over and over, that there was no asbestos taken out at the time.  The buildings were knocked down.  The buildings were then taken down on the flat two weeks later and there was no asbestos, to my knowledge, taken out at any time.[76]

  1. [88]
    Mr Jepson said that it was only when he got the paperwork from Environmental Health in March 2016 that he became aware of the asbestos in there, but not beforehand.[77]
  1. [89]
    Mr Jepson was referred to the Asbestos Containing Building Materials Technical Scope of Works Report for Lot 52 - EP 597 - 189 John Brewer Drive, Bluewater dated November 2018 which he said was for him to do the remediation through WHSQ.[78]  It was his evidence that Mr Wadley said he had approvals from the Council to dig a hole up on the beach and the debris was put into holes.  The first time Mr Jepson saw this piece of paper was one night at Keir Steele solicitors.[79]
  1. [90]
    Mr Jepson said he had only one meeting with Inspector De Ridder which he thought was more or less to give him a chance to explain his side of the story but when he got there, he was given the scope of works and the order against the clean-up.[80]
  1. [91]
    Mr Michael Cossens, a Rural Fire Service volunteer said in evidence for the Applicant he is not employed by David Wadley's Landmark Projects and doesn't receive a monetary gain.  He stated, "we've got an agreement.  Because of my - being in the Rural Fire Service, I act as a consultant on firebreaks and fire mitigation, and that's part of my job as first officer, to speak to the landowner.[81]
  1. [92]
    Mr Cossens said he attended the demolition of the four houses on the second day for approximately ten minutes in his professional capacity.  His two concerns were about fire suppression and that there was a fire truck - water truck there for hosing down the asbestos.[82]
  1. [93]
    In his evidence, Mr Laurie Bowater for the Respondent, said his main concern was environmental and as he was getting no satisfaction whatsoever at the Council to find out whether it was illegal demolition or not and with his previous knowledge, he contacted WHSQ.  Inspector De Ridder met with him on 5 December 2017 at which time he made a statement.[83]
  1. [94]
    Mr Bowater said when he arrived in the afternoon of 20 September 2015, he noticed two excavators and a truck however he did not see a lot of demolition.  It was his evidence he was there the whole day on 21 September and after they flattened the last house and stacked the rubble to the side he said they dug these huge pits 40 or 50 metres from the beach.  He said the water in the bottom rose and fell with the tides as that is how deep they were.[84]
  1. [95]
    In describing what he saw, Mr Bowater said,

I didn't know anything about the legality of the demolition.  My concern then was environmental.  There were bloody sceptic tanks there that - that weren't pumped out and the effluent removed.  They were just drums of - of stored old oil from - from oil changes to generators and vehicles and things like that.  You name it.  Gas bottles in particular.  There were half a dozen hundred pound gas bottles just sitting there.  And take note of this if you will, if they have to be dug up they will have to be very carefully done because they weren't properly vented.  And they could be very dangerous if you started bashing on them with an excavator.[85]

… It didn't take them long to flatten the house at all and - and they dug it all up and then overnight - was - was getting dark.  And they left it first thing in the morning on the 21st.  They came in and  - saw the excavator sweep that in the hole and covered it over.  It was quite quick.[86]

  1. [96]
    Mr David Wadley is the Manager, Landmark Projects. He told the Commission that Landmark Projects purchased the land situated at 189 Brewer Drive, Bluewater where the five huts were located.  He said a decision was made in 2015 to demolish the whole lot.  He engaged Watts Constructions to check the buildings for asbestos and checked with the Townsville City Council and received the required application.[87]
  1. [97]
    Mr Wadley said he asked Mr Jepson to quote for the demolition works and his secretary, Ms Kirsten Lyons received an email quotation dated 17 June 2015 for the demolition and the removal of asbestos from Mr Jepson.[88]  Mr Wadley said he accepted the quotation and acknowledged that Mr Jepson was to undertake the works.[89]
  1. [98]
    It was the evidence of Mr Wadley that he engaged Watts Constructions to survey the property in order to ascertain whether there were asbestos products in any of the buildings.  A report was received by Watts Constructions from Envirohealth dated 2 March 2015 which identified asbestos in a number of the huts.[90]  Mr Wadley provided the Watts Constructions report to Mr Jepson "a couple of days before, I think" commencement of the job.[91]
  1. [99]
    During cross-examination, Mr Jepson responded as follows:

And I suggest to you that it came to the point where Mr Wadley had a conversation with you and he asked you whether you were in a position - were you able to demolish the huts and to remove the materials from the demolition, which also included asbestos material? --- He did not say asbestos material.

Right? --- But he did - all he said was about the demolition of the huts.[92]

  1. [100]
    Mr Wadley was present on the first day of demolition when he said three huts were demolished with some demolition materials left on site.  The specification was that "you've got to remove the asbestos first and once you've done that you can deal with … knocking it down, finding the asbestos, dealing with that, taking it to a registered dump …".[93]
  1. [101]
    Mr Wadley said, "I had no role in instructing any of the … safety … contractors … I left him … contractor".[94]  During cross-examination, Mr Wadley said he gave no direction at all in terms of directing which houses to demolish on the day.  He said Mr Jesse Jepson was directing them himself.[95]
  1. [102]
    It was the evidence of Mr Wadley that he did not give any direction to any of the individuals who were responsible for undertaking the demolition works to take the demolished rubble that came from the huts down to the beach in order to stockpile it for road base.[96]
  1. [103]
    Mr Wadley said he was aware that GJT were going back to the site to continue on with the job obviously and to keep in touch with him.  Then, the day straight after the first day on site,

I got a phone call from [indistinct] the next day, actually, Thursday to say that [indistinct] about, you know [indistinct] trespasser [indistinct] and he said it had become really dangerous [indistinct] best they can.  I said, well, my suggestion was that we should bury it if we can.  I rang council and I said to council, look, we've got men on the site who are being threatened, I'd like to find out what chance we can bury this material.  They said as long as it's clean and not affected by the asbestos you're allowed to bury it.  I [indistinct] going back, I said as long as it's clean and no asbestos you can bury it.[97]

  1. [104]
    Mr Wadley said he subsequently received an invoice from the Applicant for the works that were undertaken which he paid.[98]
  1. [105]
    In his evidence Inspector De Ridder confirmed at the time he issued the Improvement Notice on 6 December 2018, after the conclusion of the investigation process, he had formed the reasonable belief that the Applicant had contravened a provision of the relevant legislation and that was based, effectively on Exhibit 1 and the materials contained therein.[99]
  1. [106]
    During cross-examination, the Inspector said when writing the statement for Mr Bowater, "I did my standard process for writing a statement … sat in front of Mr Bowater with my computer, discussed his version of events. … Put them on paper … gave him the opportunity to read through the statement …".[100]

Consideration

  1. [107]
    The Applicant seeks an external review of the Improvement Notice under s 229 of the WHS Act.  The review is dealt with by the Commission by the way of "re-hearing, unaffected by the decision".[101]  The decision is made having regard to all the evidence before it with a view to arriving at a final and correct result.[102]
  1. [108]
    The Respondent contends that the manner in which the Applicant conducted its case and having regard to the evidence before the Commission, the Applicant has failed to demonstrate any basis upon which it would be appropriate for the Commission to set aside the Improvement Notice.  Accordingly, the application for external review should be dismissed.[103]
  1. [109]
    The Applicant submits three grounds of challenge to the Internal Review Decision in their Outline of Argument dated 13 August 2019 and a further twentyone grounds of challenge contained in the Outline of Argument filed on 1 September 2020.
  1. [110]
    The majority of the grounds advanced by the Applicant have very little relevance to the issues to be determined and are speculative.  Other grounds take issue with the basis upon which the Improvement Notice was issued and the investigation process undertaken by the Inspector; contend that the Improvement Notice is purportedly invalid because the Improvement Notice states that the Inspector had formed his reasonable belief on 15 August 2017; there was a substantial conflict of interest involving Mr Jepson's solicitors which subsequently compromised his legal representation; Mr Jepson did not get a ''fair go" on the internal review process; and the evidence, which Inspector De Ridder took into account and relied upon in issuing the Improvement Notice, is somehow unreliable, inaccurate or false.
  1. [111]
    The Applicant questions the validity of the Improvement Notice and whether it was issued to the correct entity.  In examining this question, the Applicant submits that it is necessary to consider:
  • how the Applicant was engaged to demolish the huts;
  • the actual scope of works to be undertaken; and
  • who was ultimately responsible for the removal of asbestos associated with the demolition works.[104]
  1. [112]
    The Applicant contends that Inspector De Ridder issued the Improvement Notice on improper motives or that he may have been influenced by third party concerns.[105]  These contentions are baseless.[106]  The evidence demonstrates that there was no deficiency in the investigative process undertaken nor in the procedures followed by the Inspector. Moreover, the evidence does not support the contention that the Inspector was influenced by a third party nor did he issue the Improvement Notice for an improper purpose.
  1. [113]
    The evidence reveals that Mr Wadley engaged Watts Constructions to provide an assessment of demolition works of the huts including obtaining the Envirohealth Report which confirmed that there was asbestos in some of the huts.
  1. [114]
    Mr Wadley said the decision to demolish the five huts located on the property around May/June 2015 was made because squatters regularly used the huts and were illegal trespassers.[107]
  2. [115]
    Mr Jepson had never undertaken asbestos removal or asbestos demolitions prior to undertaking the demolition works at Bluewater.[108]  He was unaware of any type of requirements and/or standards or workplace health and safety requirements relevant to asbestos removal.[109]
  1. [116]
    It was the understanding of Mr Jepson that Mr Wadley was to obtain the relevant legal approvals[110] and "I just took it for the work that he had all - all the paperwork in place".[111]
  1. [117]
    In the evidence of Mr Jepson he was engaged by Mr Wadley to do the demolition as follows:
  1. (a)
    Mr Wadley asked him "could we knock the houses down" a couple of weeks before the actual works were carried out;
  2. (b)
    Mr Wadley never asked how much the works might cost;
  3. (c)
    Mr Wadley specified that four houses needed to be knocked down on the first day;
  4. (d)
    the details about demolition were conveyed by Mr Wadley at their first meeting sometime in August, which occurred face to face, out at Bluewater; and
  5. (e)
    it was at the first meeting that Mr Jepson reached an agreement with Mr Wadley to knock down the huts, and Mr Jepson recalled, "I said, 'All good.  We'll see what we can do'."[112]
  1. [118]
    In cross-examination Mr Jepson disagreed with the proposition that no such meeting took place.[113]
  1. [119]
    Mr Jepson said in evidence, because he had difficulties reading and writing, he would telephone Ms Mitchell and inform her of what he wanted to be sent out in an email and she would prepare it.  He would not read over or look at an email prior to it being sent.[114]
  1. [120]
    When cross-examined in respect to the email of 17 June 2015, Mr Jepson said:

Do you recall asking Ms Mitchell to prepare such an email?---Well, I know about sending it to David Wadley and that, yeah.

Okay.  How do you know about --- ?---Because I ---

it being sent to --- ? --- asked her to do it.[115]

  1. [121]
    However, in further cross-examination Mr Jepson said, "I told you that I did not give him [Mr Wadley] a quote"[116] even though the email of 17 June 2015 clearly states: "Quotation for work to be carried out".  Mr Jepson could not provide a plausible explanation about the existence of the quote and stated in evidence that he first saw the quotation when crossexamined on the second day of the hearing.[117]  That answer is inconsistent with his earlier evidence in that he was aware of the existence of the email.
  1. [122]
    Mr Wadley confirmed that he received a quote from Mr Jepson around 17 June 2015[118] and decided to engage Mr Jepson because "I had an inclination to help him, give him some work".[119]  Mr Wadley stated the Envirohealth Report was provided to Mr Jepson "a couple of days before, I think" the demolition works taking place.[120]
  1. [123]
    Mr Jepson's recollection is contrary to the evidence of Mr Wadley.  Mr Jepson stated in evidence that Mr Wadley provided the Envirohealth Report "two days prior to the cleanup" which on Mr Jepson's recollection was after the initial demolition works were undertaken on 3 September 2017.[121]  However, this evidence does not accord with the response to the s 171 Notice to Produce and Answer Questions (Notice to Produce) which states: "These documents were provided two (2) days prior to the demolition of the huts".
  1. [124]
    The Respondent contends that Mr Jepson's denials and explanations as to the involvement of Mr Buckland should be rejected.  They are inaccurate.[122] 
  1. [125]
    The File Note of Inspector De Ridder as to the recorded conversation with Mr Jepson on 12 September 2017 is, in my view, an accurate account of that discussion.[123] In that note it is said: "Gavin stated that he had been given 2 pieces of paper which identified the Asbestos in the building, he had approached Brendan Buckland who he stated was a 'chippy' acquittance of him, he also has a ticket for 'small amounts' of asbestos removal".[124]
  1. [126]
    The Notice to Produce dated 22 January 2018 was issued by Inspector De Ridder to the Applicant pursuant to s 171 of the WHS Act.[125]  On 5 February 2018 a response was prepared by the Applicant's solicitors, Keir Steele.[126]  That response was prepared on the instructions of Mr Jepson.
  1. [127]
    At point 9 of the response, "Confirmation of Asbestos Removal" it states:

"Brendan Buckland removed the asbestos material identified in the documents provided to GJT by David Wadley".[127]

  1. [128]
    Mr Jepson's evidence was that Mr Buckland told him, "[h]e found bits and pieces that he could find around the area, wrapped it up and took it to the dump, to Bluewater Landfill".[128]  Mr Jepson then had to chase Mr Buckland up for the dump receipt which he said Mr Buckland initially had paid for the dumping costs himself "with his card, and then I gave him the money back".[129]  Mr Jepson had no idea that to remove asbestos, qualifications were required.[130]
  1. [129]
    These aspects of Mr Jepson's evidence are inconsistent with the response at Point 13, headed "Demolition Debris" which in part states:

Our client instructs that GJT was directed by David Wadley to stockpile the materials on the flats located near the huts.  Our client instructs that the debris was removed and taken to the dump. ….[131]

  1. [130]
    Mr Jepson appeared not to accept the accuracy of the response and stated that "there was no such thing as moving - said moving - removing asbestos".[132]  He denied he ever told Mr Sterling (as set out in the response) that the asbestos was removed by Mr Buckland at the direction of Mr Wadley and taken to the old brickworks and dumped by Mr Buckland.[133]
  1. [131]
    Mr Jepson told the Commission that he disagreed that Mr Wadley directed Mr Buckland to remove and take the asbestos to the dump but was adamant that Mr Wadley "directed us to stockpile and keep it down on the flats".[134]
  1. [132]
    The Respondent submits that Mr Jepson's explanation in the response where he disagreed with certain aspects was, "I did not say it"[135] and that the responses were wrong or inaccurate, should be rejected. 
  1. [133]
    There is no basis for Inspector De Ridder to doubt the accuracy of the responses set out in the letter of Keir Steele.  The Applicant now seeks to depart from the various responses contained in the Keir Steele letter as they are adverse to his case.
  1. [134]
    During the investigation process Inspector De Ridder provided a report and a statement.[136]  The Respondent submits that if the Applicant believes the investigation process was "shoddy" or that the Inspector was purportedly "incompetent or turned a blind eye"[137] to particular matters then the onus rests with the Applicant to make good any such complaint.[138]
  2. [135]
    In forming his reasonable belief on 15 August 2017, the Respondent submits there is no merit in the Applicant's contention that the Improvement Notice is invalid. As of 15 August 2017 the investigation was ongoing and the Notice was not issued until 6 December 2018.[139]
  1. [136]
    Irrespective, the Respondent relies upon s 208 of the WHS Act.  That section provides:

208 Formal irregularities or defects in notice

 A notice is not invalid only because of -

 (a) a formal defect or irregularity in the notice unless the defect or irregularity causes or is likely to cause substantial injustice; or

 (b) a failure to use the correct name of the person to whom the notice is issued if the notice sufficiently identifies the person and is issued or given to the person under section 209.

  1. [137]
    There is nothing before the Commission to support the view that the incorrect date contained in the Improvement Notice was such as to cause or likely to cause substantial injustice.
  1. [138]
    In relation to Mr Bowater's statement,[140] evidence was given that he now feels some aspects might not be accurate.  Inspector De Ridder stated Mr Bowater was provided an opportunity to read the statement before signing it and availed himself of this opportunity.  However, it is the Respondent's submission that nothing turns on Mr Bowater's evidence in that certain aspects might not be accurate.[141]
  1. [139]
    Inspector De Ridder concisely outlined in his evidence:

Okay? --- In regards to their investigations, that was placed on the file ---

All right? --- and we continued on with our own investigative process to identify who the [indistinct] views were, who were responsible, had involvement in the process - the project - and worked our way through our own framework, and our own standards, the way we do investigations in our department, and continued on looking at contraventions in relation to ---

Yes, okay?--- - - - the [indistinct].

HIS HONOUR: And that's independent of any other agency that might --- ? ---

That's correct.[142]

  1. [140]
    The Respondent submits the process as outlined in evidence was an entirely conventional approach and any criticism of such process is "misconceived and unfounded" on the evidence as a whole.[143] I agree.
  1. [141]
    During cross-examination, Inspector De Ridder was criticised for not communicating directly with Mr Jepson when undertaking his investigation.  However, Inspector De Ridder had been directed by Mr Jepson to go through his solicitors.[144]  This criticism is entirely unfounded.
  1. [142]
    The Respondent submits there appeared to be an undercurrent during the course of the cross-examination of Inspector De Ridder that Mr Jepson and/or the Applicant were not given procedural fairness. 
  1. [143]
    A review under s 229D of the WHS Act is to be dealt with by the Commission "by way of rehearing, unaffected by the decision".  An appeal de novo involves a rehearing of the evidence by the appellate court.  It is analogous to a new trial.[145]  Because the external review is a hearing de novo the Applicant is able to run its case as it sees fit and place before the Commission any evidence which may not have been before Inspector De Ridder.  It would appear the Applicant has not done so.[146]
  1. [144]
    The Respondent contends the onus is on the Applicant to identify where Inspector De Ridder relied upon unreliable, inaccurate or false information in issuing the Improvement Notice.  The Applicant has failed to discharge this onus.[147]
  1. [145]
    The totality of the evidence of Mr Jepson reveals he provided a quotation to carry out the demolition works at Bluewater which included a sentence, "I will send a copy of the Asbestos Ticket through for your records".[148]  This is indicative of the fact that Mr Jepson was aware of the presence of asbestos within the demolition.  Mr Jepson's evidence in respect to the quote should be rejected as it is implausible.
  1. [146]
    This is further supported by the responses to the Notice to Produce dated 5 February 2018 where his solicitor, Mr Sterling prefaces the responses, "we have obtained our client's instructions" and each response is premised with the phrase "our client instructs" or "our client confirms".  The Respondent contends there is no basis not to accept the responses provided by his solicitor. 
  1. [147]
    The Applicant's contention that Mr Buckland was not engaged to remove any asbestos must be rejected.  Whether Mr Buckland was engaged as a sub-contractor or employee is unclear.  Mr Jepson was aware, and the evidence reveals that Mr Buckland was licenced for the removal of small amounts of asbestos and that is why Mr Jepson engaged him.  The letter of MacDonnells Law of 4 August 2016[149] makes clear that Mr Buckland was engaged to ensure the safe removal of the asbestos in the two huts. The evidence is also clear the Applicant was the principal or contractor engaged for the demolition of the huts and removal of asbestos.
  1. [148]
    In his final submissions the Applicant submits the Order (Improvement Notice) against his part-time earthmoving company is a gross miscarriage of justice and should be dismissed.  That Mr Wadley and Landmark "should be held legally and financially responsible for the Toolakea asbestos contamination and the cost of remediating this".[150]
  1. [149]
    The Respondent submits the Applicant's final submissions are repetitive in relation to the Council's investigation, various officers of WHSQ, his relationship with his solicitors and the agistment agreement with Landmark and irrelevant in terms of the review proceedings.[151]
  1. [150]
    The Applicant now seeks to make submissions in respect to individuals who did not provide evidence in the proceedings and this "commentary is irrelevant".[152]
  1. [151]
    I accept the Respondent's submission that the Applicant's criticism of Inspector De Ridder's investigation process and report lack any evidentiary foundation and are without substance.
  1. [152]
    The contentions the Applicant was denied "a fair trial"[153] is totally misconceived as he was afforded every opportunity to present his case as he desired.  He bears the onus to demonstrate why the Improvement Notice should be set aside.  The Commission repeatedly informed the Applicant's representative during the proceedings that the issue is to be determined on the evidence presented.  The Applicant's submissions assert matters unsupported by the evidence.  By way of example:

"Before De Ridder got the file WHSQ/OIR's senior management had made recommendations not to touch this case because of alluded-to 'political interference' …".[154]

  1. [153]
    The Applicant has attached three appendices to his final submissions.  They are:

Appendix 1 Opening address 9 November 2020

(pp 17-20)

Appendix 2 Concerning new evidence - Wadley & Cossens lied under oath in the November hearings

(pp 21-35) Statutory Declaration - MacGill (resident Blue Pines)

 Statutory Declaration - John Brown (former resident Blue Pines)

 Email Commission & cc QIRC Registry - re perjury

 Complaint to QPS RTI Office - handled by Leanne Day (RTI/33053)

 Appendix 3 Renewed relevance of Applicant's argument in hearing

(pp 36-89) Applicant's outline of argument (21 Grounds - application for review).

  1. [154]
    Appendix 1 is not relevant to these proceedings as it is not evidence; Appendix 2 did not form any part of the evidence before the Commission and therefore cannot be taken into account; and Appendix 3 comprises a copy of the Applicant's outline of argument filed prior to the hearing.[155]
  1. [155]
    I accept that the Applicant has failed to have proper regard to the evidence before the Commission both in respect of the oral evidence and exhibits tendered during the proceedings.  Clearly, there is a disconnect between the Applicant's submissions and the evidence.[156]
  1. [156]
    Moreover, the question in this case is not whether the Inspector held a belief but whether such a belief was reasonable in the circumstances.
  1. [157]
    It was the evidence of Inspector De Ridder that on 6 December 2015 he formed a reasonable belief that the Applicant had contravened r 472(1) of the WHS Regulation.
  1. [158]
    The issuing of the Improvement Notice was consequent upon an extensive investigation undertaken by WHSQ.  The investigation was difficult to progress because of the effluxion of time and the death of a key witness which compounded the inability to establish a clear chain of events and to substantiate a breach under s 268 of the WHS Act.  However, what was established was that the primary duty holders for the purposes of the enforcement action were DWC Property Services Pty Ltd and GJT Earth Moving Pty Ltd.  Further, the site inspection undertaken by Inspector De Ridder on 15 August 2017 identified a breach under r 472(1) of the WHS Regulation against the Applicant and a breach of s 20(2) of the WHS Act against DWC Property Services Pty Ltd.[157]
  1. [159]
    I accept that the evidence before the Commission establishes that DWC was engaged as Landmark's property manager and arranged for the demolition of huts located on Lot 52, 189 John Brewer Drive, Bluewater; a Report commissioned by Watts Constructions, from Envirohealth identified two structures contained ACM; DWC subsequently got quotes for the demolition of the huts and asbestos removal; on 17 June 2015 the Applicant provided a quote; DWC accepted the quote from the Applicant and the Applicant was engaged to undertake the demolition and removal of asbestos, however no formal written contract was put in place; the Envirohealth report was provided to the Applicant prior to the demolition; the Applicant advised DWC that Mr Buckland, an asbestos licensed contractor, would be onsite to remove the asbestos; and Mr Buckland subsequently removed ACM from the site.
  1. [160]
    It was asserted that the Applicant was only informed of the presence of ACM after the tender was accepted.[158]  However, the Applicant must have been aware of the presence of asbestos at the time of the preparation of his quote on 17 June 2015.  The quote makes specific reference to sending a copy of the Asbestos Ticket through to DWC for their records.  Further, in the letter of Keir Steele in response to the Notice to Produce it is stated that two days prior to the demolition of the huts, Mr Wadley provided to the Applicant a copy of the Watts Construction Report which identified that asbestos was present in the huts.  This was consistent with the evidence given by Mr Wadley.[159]
  1. [161]
    The evidence before Inspector De Ridder was to the effect that DWC gave initial instructions to properly deal with the asbestos and then remove the balance of the rubbish to the dump.  DWC had requested permission from the Council to bury debris on site and had been advised that provided the materials were not contaminated this could occur.  DWC subsequently double checked with the Applicant to ensure that no asbestos would be buried.  Consequently, it was for the Applicant to remove and dispose of the asbestos in a lawful manner following proper procedures.

 Conclusion

  1. [162]
    The Inspector's decision to issue the Improvement Notice reveals no error.  Moreover, I am of the view that the evidence before the Commission supports a finding that Inspector De Ridder formed a reasonable belief that the applicant contravened r 472(1) of the WHS Regulation.  The notice was correctly issued to the Applicant.  The external review should be dismissed, and the Improvement Notice confirmed under s 229E of the WHS Act.

Orders

  1. [163]
    I make the following orders:

1. The external review is dismissed.

2. Pursuant to s 229E of the WHS Act, the review decision of 25 January 2019 is confirmed.

Footnotes

[1] Applicant's Affidavit sworn on 27 February 2019, [A]; Exhibit 1, pp 174-175.

[2] George v Rockett (1990) 170 CLR 104, 115-116.

[3] Multiplex Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011 (No 2) [2019] QIRC 133, [27].

[4] George v Rockett (1990) 170 CLR 104, 112.

[5] Applicant's outline of argument dated 13 August 2019, [22]-[54].

[6] Applicant's outline of argument filed 1 September 2020, [22]-[166].

[7] Respondent's outline of submissions dated 12 September 2019, [15].

[8] Affidavit Gavin John Jepson affirmed 27 February 2019, [17].

[9] Affidavit Gavin John Jepson affirmed 27 February 2019, [19].

[10] Affidavit Gavin John Jepson affirmed 27 February 2019, [20].

[11] Respondent's outline of submissions dated 12 September 2019, [18].

[12] Applicant's outline of argument dated 13 August 2019, [2].

[13] Exhibit 1, volume 1, p 210.

[14] Exhibit 1, p 43, Statement of a witness, Laurence Bowater, [3], [7].

[15] Applicant's outline of argument dated 13 August 2019, [7]-[8].

[16] Applicant's outline of argument dated 13 August 2019, [49].

[17] Respondent's outline of submissions dated 12 September 2019, [21].

[18] Respondent's outline of submissions dated 12 September 2019, [22]-[23].

[19] Applicant's outline of argument dated 13 August 2019, [53].

[20] Respondent's outline of submissions dated 12 September 2019, [25].

[21] Applicant's outline of argument filed 31 August 2020, [44].

[22] Applicant's outline of argument filed 31 August 2020, [54].

[23] Applicant's outline of argument filed 31 August 2020, [64].

[24] Applicant's outline of argument filed 31 August 2020, [66].

[25] Applicant's outline of argument filed 31 August 2020, [75].

[26] Applicant's outline of argument filed 31 August 2020, [129].

[27] Applicant's outline of argument filed 31 August 2020, [134].

[28] Applicant's outline of argument filed 31 August 2020, [134]-[140].

[29] Respondent's outline of submissions dated 12 September 2019, [26].

[30] Respondent's further outline of submissions dated 21 September 2020, [1]-[16].

[31] TR1-32, LL10-12.

[32] TR1-34, LL23-29.

[33] TR1-53, LL28-44.

[34] TR1-54, LL11-25.

[35] TR1-59, LL34-41;  TR1-60, LL40-41.

[36] TR1-65, LL35-38.

[37] TR1-121, LL31-45.

[38] TR1-68, LL1-2.

[39] TR1-69, L37-TR1-70, L19.

[40] TR1-70, LL24-34.

[41] TR1-70, L39-TR1-71, L8.

[42] TR1-73, LL24-28.

[43] TR1-83, L17.

[44] TR1-73, LL25-38.

[45] TR1-73, L44-TR1-74, L8.

[46] TR1-75, L44-TR1-76, L1.

[47] TR1-83, LL22-24.

[48] TR1-83, L26-TR1-84, L2.

[49] TR1-108, L25-TR1-109, L5.

[50] TR1-109, LL26-27.

[51] TR1-109, LL23-44.

[52] TR1-110, LL32-38.

[53] TR2-23, LL37-38.

[54] TR2-24, LL40-41.

[55] TR1-115, LL20-35.

[56] TR2-27, LL10-11; TR2-32, LL16-23.

[57] TR1-117, LL15-20.

[58] TR1-123, LL26-40.

[59] TR2-33, LL13-18.

[60] TR1-125, L1-TR1-127, L3.

[61] TR1-129, L44-TR1-130, L8.

[62] TR1-135, LL-43.

[63] TR1-136, LL13-18.

[64] TR2-41, L40-TR2-42, L28.

[65] Exhibit 1, pp 287-290; TR2-6, L6-TR2-8, L29.

[66] TR2-10, LL15-16.

[67] TR3-142, LL18-20.

[68] TR2-39, LL23-24; TR2-44, LL38-39.

[69] TR2-46, L20-TR2-47, L15.

[70] Exhibit 3, p 3.

[71] TR2-54, L45-TR2-55, L44.

[72] TR2-24, LL40-41; TR2-26, LL36-37; TR2-29, LL13-14.

[73] TR2-56, LL7-10.

[74] TR2-40, L18-TR2-41, L32.

[75] Exhibit 3.

[76] TR2-13, LL7-10.

[77] TR2-17, LL41-43.

[78] Exhibit 1, pp 1058-1092.

[79] TR2-20, L42-TR2-21, L3.

[80] TR2-22, LL31-35.

[81] TR2-66, LL16-23.

[82] TR2-70, LL1-31.

[83] TR2-95, LL10-32.

[84] TR2-98, LL6-19.

[85] TR2-98, LL39-47.

[86] TR2-99, LL22-25.

[87] TR3-4, L10-TR3-5, L36.

[88] Exhibit 1, volume 1, p 210.

[89] TR3-6, L33-TR3-8, L8.

[90] Exhibit 1, pp 211-212.

[91] TR3-8, LL38-46.

[92] TR2-23, LL29-34.

[93] TR3-9, LL19-26.

[94] TR3-9, LL30-31.

[95] TR3-23, LL17-31.

[96] TR3-10, LL22-28.

[97] TR3-11, LL1-22.

[98] Exhibit 1, p 209.

[99] TR4-43, LL9-16.

[100] TR4-72, LL30-37.

[101] Lindores Construction Logistics Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2018] QIRC 61, [3].

[102] NSW Rural Fire Service v SafeWork NSW [2016] NSWIRComm 4, [70].

[103] Respondent's outline of submissions filed 15 March 2021, [9].

[104] Respondent's outline of submissions filed 15 March 2021, [10].

[105] Applicant's outline of argument filed 1 September 2020, Grounds 6, 7, 8, 9, 11, 12, 13, 14, 15 and 16.

[106] Respondent's outline of submissions filed 15 March 2021, [11].

[107] TR3-4, LL40-41.

[108] TR1-108, LL42-45.

[109] TR1-109, LL1-8.

[110] TR1-109, LL10-15.

[111] TR1-109, LL20-21.

[112] TR2-34, L1-TR2-35, L15.

[113] TR2-35, LL39-45.

[114] TR2-25, LL21-26.

[115] TR2-25, L46-TR2-26, L3.

[116] TR2-29, LL13-14.

[117] TR2-29, LL16-39.

[118] TR3-7, LL16-31.

[119] TR3-20, LL24-25.

[120] TR3-8, LL46-47.

[121] TR2-32, LL16-31.

[122] TR2-33, LL5-18.

[123] Exhibit 1, p 607 at 141.

[124] Ibid.

[125] Exhibit 1, pp 284-286.

[126] Exhibit 1, pp 287-290.

[127] Exhibit 1, p 288.

[128] TR2-47, LL1-3.

[129] TR2-49, LL15-22.

[130] TR2-47, LL13-17.

[131] Exhibit 1, p 289, Letter from Keir Steele to Inspector De Ridder dated 5 February 2018.

[132] TR2-7, LL9-24.

[133] TR2-7, LL32-40.

[134] TR2-49, LL46-47; TR2-50, LL1-4.

[135] TR2-7, LL32-40.

[136] Exhibit 1, pp 6-31, 33-42.

[137] TR5-93, LL20-22.

[138] TR5-92.

[139] Applicant's final submissions filed 21 April 2021, p 66, Ground 10.

[140] Exhibit 1, pp 43-47.

[141] Respondent's outline of submissions filed 15 March 2021, [100].

[142] TR5-28, LL20-31; TR5-33.

[143] Respondent's outline of submissions filed 15 March 2021, [103].

[144] TR5-44-TR5-46.

[145] Dalliston v Taylor & Anor ICQ 017, [12].

[146] Respondent's outline of submissions filed 15 March 2021, [106].

[147] Ibid, [107].

[148] Exhibit 1, Volume 1, p 210.

[149] Exhibit 3.

[150] Applicant's final submissions filed 21 April 2021, pp 15, 16.

[151] Respondent's reply submissions filed 23 April 2021, [1].

[152] Applicant's final submissions filed 21 April 2021, pp 5-6, [4].

[153] Ibid, p 13, [8(iii)].

[154] Ibid, p 16.

[155] Respondent's reply submissions filed 23 April 2021, [6]-[8].

[156] Ibid, [9].

[157] Exhibit 1, p 30.

[158] Applicant's outline of submissions dated 13 August 2019, para 40.

[159] TR3-8, LL46-47;  Exhibit 1, p 288, Letter from Keir Steele to Inspector De Ridder dated 5 February 2018, [7].

Close

Editorial Notes

  • Published Case Name:

    GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011

  • Shortened Case Name:

    GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011

  • MNC:

    [2021] QIRC 306

  • Court:

    QIRC

  • Judge(s):

    O'Connor VP

  • Date:

    06 Sep 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.