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Visscher v Safework NSW

Visscher v Safework NSW

Case [2025] NSWSC 489 19 May 2025

Jurisdiction

Natural Justice & Procedural Fairness

Administrative Law

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Supreme Court

New South Wales

Medium Neutral Citation: Visscher v Safework NSW [2025] NSWSC 489
Hearing dates: 12 March 2025
Date of orders: 19 May 2025
Decision date: 19 May 2025
Jurisdiction: Common Law - Administrative Law
Before: McHugh JA
Decision:
(1) Pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW), extend the time to commence the proceedings up to and including 16 August 2024.
(2) The amended summons filed on 30 September 2024 be dismissed.
(3) The plaintiff pay the first defendant’s costs in this Court.

Catchwords:
ADMINISTRATIVE LAW — Industrial Relations Commission of New South Wales — nature and extent of jurisdiction conferred by s 229 of the Work Health and Safety Act 2011 (NSW) — whether questions of construction and application of the Act within jurisdiction
ADMINISTRATIVE LAW — denial of procedural fairness — where plaintiff had no notice of evidence — where plaintiff alleged not given opportunity to lead rebuttal evidence — where surprise evidence not relied on in Commissioner’s dispositive findings — whether outcome would have inevitably been the same had alleged error not been made — no jurisdictional error

Legislation Cited:
Home Building Act 1989 (NSW), ss 12, 31
Industrial Relations Act 1996 (NSW), ss 146, 162, 163, 175, 179, 187, 188
Supreme Court Act 1970 (NSW), s 69
Work Health and Safety Act 2011 (NSW), ss 5, 7, 8, 19, 195, 196, 197, 224, 229
Home Building Regulation 2014 (NSW), cl 17
Uniform Civil Procedure Rules 2005 (NSW), r 59.10
Work Health and Safety Regulation 2017 (NSW), cl 78

Cases Cited:
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610
Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR 154; [2021] NSWCA 294
Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501; [2006] WASCA 219
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57
Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48
Secretary of the Ministry of Health v Australian Paramedics Association(NSW) (2022) 320 IR 198; [2022] NSWSC 1431
Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1; [2023] HCA 3
The Returned & Services League of Australia (Victoria Branch) Inc v Liquor Licensing Commission [1999] 2 VR 203; [1999] VSCA 37
Visscher v SafeWork NSW [2023] NSWCA 164
Visscher v SafeWork NSW [2024] NSWIRComm 1012
Visscher v SafeWork NSW [2024] NSWIRComm 1038
Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124

Category: Principal judgment
Parties: Timothy Visscher (Plaintiff)
Secretary of the Department of Finance, Services and Innovation known as SafeWork NSW (First Defendant)
Industrial Relations Commission of New…

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 [2025] NSWSC 489
Case: [2025] NSWSC 489
Decision Date: 19 May 2025

CaseChat Overview and Summary

The case of Visscher v Safework NSW involved a dispute before the Industrial Relations Commission of New South Wales. The plaintiff, Visscher, challenged a decision made by Safework NSW, the regulatory body responsible for enforcing work health and safety laws in New South Wales. Visscher sought to overturn a decision that had significant implications for his employment and professional standing.

The primary legal issue before the court was whether the Industrial Relations Commission had the jurisdiction to review and potentially overturn decisions made by Safework NSW under section 229 of the Work Health and Safety Act 2011 (NSW). Specifically, the court needed to determine if the Commission could address questions concerning the construction and application of the Act. Additionally, the court examined whether the plaintiff had been denied procedural fairness due to a lack of notice regarding certain evidence and an opportunity to present rebuttal evidence. Visscher argued that the surprise evidence was not relied upon in the Commissioner's final findings, but he contended that the procedural errors should still result in the decision being quashed.

The court found that the Commission had the requisite jurisdiction to address questions related to the construction and application of the Act. It was determined that the Commission could review and, if necessary, overturn decisions made by Safework NSW. Regarding the allegation of procedural unfairness, the court held that there was no jurisdictional error. Visscher had not been denied procedural fairness because the surprise evidence was not determinative in the Commissioner's findings. Even if the alleged procedural errors had not occurred, the outcome would have inevitably been the same. Therefore, the court dismissed Visscher's appeal and upheld the original decision made by Safework NSW.

Orders