Visscher v SafeWork NSW - [2023] NSWCA 164

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Visscher v SafeWork NSW [2023] NSWCA 164
Hearing dates: 12 July 2023
Date of orders: 17 July 2023
Decision date: 17 July 2023
Before: Meagher JA; Gleeson JA
Decision:
(1) The summons for leave to appeal is dismissed.
(2) Make no order as to the costs of the summons.

Catchwords:
APPEALS — leave to appeal — where applicant in proceedings in Industrial Relations Commission seeks production of documents under a notice to produce — where first respondent claims public interest immunity — where ruling of Commissioner denying immunity claim in part the subject of an appeal to Full Bench — claim to immunity substantially upheld — application for judicial review of that decision — whether primary judge erred in finding no jurisdictional error on part of Full Bench — leave refused

Legislation Cited:
Industrial Relations Act 1996 (NSW), ss 146, 175, 179, 187, 188
Supreme Court Act 1970 (NSW), s 101(2)(r)
Work Health and Safety Act 2011 (NSW), ss 5, 8, 195, 223, 224, 229

Cases Cited:
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR 154; [2021] NSWCA 294
SafeWork NSW v Visscher (No 3); Visscher v SafeWork NSW (No 2) [2021] NSWIRComm 1099
Visscher v SafeWork NSW (No 2) [2022] NSWSC 1253

Category: Procedural rulings
Parties: Mr Timothy Visscher (Applicant)
The Secretary of the Department of Customer Service, known as SafeWork NSW (First Respondent)
The Full Bench of the Industrial Relations Commission of New South Wales (Second Respondent)
Representation:
Counsel:
Applicant (self-represented)
IC Latham (First Respondent)
Solicitors:
C White (First Respondent)

File Number(s): 2023/132549
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law Division

Citation:

[2023] NSWSC 317

Date of Decision:

31 March 2023

Before:

Schmidt AJ

File Number(s):

2022/31494

JUDGMENT

THE COURT: On 7 December 2020, an inspector for SafeWork NSW (SafeWork) issued to the applicant, Mr Visscher, a prohibition notice under s 195 of the Work Health and Safety Act 2011 (NSW) (WHS Act). That notice precluded Mr Visscher from conducting further work on his residential property until he had taken certain steps to remedy what were said to be deficiencies in the scaffolding erected on that property. Mr Visscher made an application under s 224 of the WHS Act for an internal review of the inspector’s decision to issue that notice. The “internal reviewer” confirmed that decision.
On 11 January 2021, Mr Visscher commenced proceedings in the Industrial Relations Commission of New South Wales (Commission) under s 229 of the WHS Act for an “external review” of that decision, contending that the notice was invalid. The Commission has not yet heard or determined that application to which SafeWork is the respondent.
The subject matter of Mr Visscher’s application for leave to appeal to this Court…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Visscher v SafeWork NSW

Details

AGLC: Visscher v SafeWork NSW [2023] NSWCA 164
Case: [2023] NSWCA 164
Decision Date: 17 July 2023

CaseChat Overview and Summary

The applicant, Visscher, sought judicial review of a decision by the Full Bench of the Industrial Relations Commission of New South Wales. The dispute originated in proceedings before a Commissioner where Visscher sought the production of documents from SafeWork NSW via a notice to produce. SafeWork NSW claimed public interest immunity in respect of some of these documents. The Commissioner partially denied the claim for immunity, a decision which SafeWork NSW appealed to the Full Bench. The Full Bench substantially upheld SafeWork NSW's claim to public interest immunity, limiting the scope of documents that could be produced. Visscher then sought judicial review of the Full Bench's decision.

The primary legal issue before the court was whether the primary judge erred in finding that the Full Bench had not committed jurisdictional error in its decision to uphold SafeWork NSW's claim to public interest immunity, in part. This involved considering the principles governing public interest immunity and the extent to which it could be claimed and upheld in industrial relations proceedings.

The court considered the established principles of public interest immunity, which permit the withholding of documents where their disclosure would be contrary to the public interest. The Full Bench had applied these principles and concluded that while some documents were protected, others were not. The primary judge had reviewed this decision and found no jurisdictional error on the part of the Full Bench. The court in this instance was asked to determine whether leave to appeal from the primary judge's decision should be granted.

The summons for leave to appeal was dismissed, and no order was made as to the costs of the summons.

Orders

Orders of the court

(1) The summons for leave to appeal is dismissed.

(2) Make no order as to the costs of the summons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Visscher v SafeWork NSW [2023] NSWCA 164
Hearing dates:	12 July 2023
Date of orders:	17 July 2023
Decision date:	17 July 2023
Before:	Meagher JA; Gleeson JA
Decision:	(1) The summons for leave to appeal is dismissed. (2) Make no order as to the costs of the summons.
Catchwords:	APPEALS — leave to appeal — where applicant in proceedings in Industrial Relations Commission seeks production of documents under a notice to produce — where first respondent claims public interest immunity — where ruling of Commissioner denying immunity claim in part the subject of an appeal to Full Bench — claim to immunity substantially upheld — application for judicial review of that decision — whether primary judge erred in finding no jurisdictional error on part of Full Bench — leave refused
Legislation Cited:	Industrial Relations Act 1996 (NSW), ss 146, 175, 179, 187, 188 Supreme Court Act 1970 (NSW), s 101(2)(r) Work Health and Safety Act 2011 (NSW), ss 5, 8, 195, 223, 224, 229
Cases Cited:	Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR 154; [2021] NSWCA 294 SafeWork NSW v Visscher (No 3); Visscher v SafeWork NSW (No 2) [2021] NSWIRComm 1099 Visscher v SafeWork NSW (No 2) [2022] NSWSC 1253
Category:	Procedural rulings
Parties:	Mr Timothy Visscher (Applicant) The Secretary of the Department of Customer Service, known as SafeWork NSW (First Respondent) The Full Bench of the Industrial Relations Commission of New South Wales (Second Respondent)
Representation:	Counsel: Applicant (self-represented) IC Latham (First Respondent) Solicitors: C White (First Respondent)
File Number(s):	2023/132549
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2023] NSWSC 317 Date of Decision: 31 March 2023 Before: Schmidt AJ File Number(s): 2022/31494