Visscher v Safework NSW

[2025] NSWSC 489

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 South Wales (Second Defendant) (submitting appearance)

Representation:

Counsel:
In person (Plaintiff)
N Read (First Defendant)
Solicitors:
In person (Plaintiff)
Crown Solicitor’s Office (First Defendant)

File Number(s):

2024/302065

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Industrial Relations Commission New South Wales

Jurisdiction:

Industrial Relations Commission New South Wales

Citation:

Visscher v SafeWork NSW [2024] NSWIRComm 1012

Date of Decision:

28 February 2024

Before:

Commissioner McDonald

File Number(s):

2021/00012730

JUDGMENT

1. The plaintiff was building a house pursuant to an owner-builder permit. For that purpose he had erected a scaffold at the front of the house. Someone disapproved of the scaffold. A SafeWork NSW Inspector (the Inspector) appeared on site. The Inspector gave the plaintiff an oral direction to stop any work on the scaffold and upper balcony until the plaintiff could demonstrate that the scaffold was compliant and built by a competent person. This was confirmed in a written prohibition notice (the Notice). Rather than comply with the Notice, the plaintiff challenged the Inspector’s authority to issue it. The challenge eventually came before Commissioner McDonald of the New South Wales Industrial Relations Commission (the Commission), who decided against the plaintiff: Visscher v SafeWork NSW [2024] NSWIRComm 1012.

2. More than four years after the Notice was issued, this is the plaintiff’s application for judicial review of the Commissioner’s decision. No reviewable error has been shown. The summons must be dismissed.

Procedural background

3. The Notice was issued on 7 December 2020, by the Inspector, Mr Fripp, pursuant to s 195 of the Work Health and Safety Act 2011 (NSW) (WHS Act). On 14 December 2020, the plaintiff applied pursuant to s 224 of the WHS Act for “internal review” of the Inspector’s decision to issue the Notice. On 24 December 2020, the internal reviewer affirmed the Inspector’s decision. On 11 January 2021, the plaintiff applied to the Commission for “external review” pursuant to s 229 of the WHS Act. These reasons will return to s 224 below.

4. There followed a lengthy procedural history, as set out in the Commissioner’s decision at D[21]-[55]. This included an application for leave to appeal to the Court of Appeal in relation to an application for production of documents: Visscher v SafeWork NSW [2023] NSWCA 164 (Meagher and Gleeson JJA) (Visscher CA). The plaintiff’s application for external review eventually came on for hearing in November 2023. The Commissioner dismissed the external review and confirmed the internal review on 28 February 2024 (the Decision).

5. The plaintiff then sought leave to appeal to the Full Bench of the Commission. The Full Bench declined leave to appeal on 21 June 2024: Visscher v SafeWork NSW [2024] NSWIRComm 1038. Consistently with the reasoning in Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 at [181]-[186] per McColl JA (Macfarlan JA agreeing), the parties proceeded in this Court on the footing that in those circumstances the operative decision was that of Commissioner McDonald.

6. The proceedings for judicial review in this Court were commenced by summons filed on 16 August 2024. That was outside the three month period after the Decision for which the Uniform Civil Procedure Rules 2005 (NSW), r 59.10 provides. Accordingly, as the plaintiff recognises, he needs an extension of time.

Judicial review is confined to jurisdictional error by the Commissioner

7. As noted above, the Commissioner’s authority to conduct the external review was conferred by s 229 of the WHS Act. It was not disputed in this Court that, because of the provisions of s 179 of the Industrial Relations Act 1996 (NSW), judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) is available only for jurisdictional error: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [100]; Visscher CA at [6].

8. These reasons will address jurisdictional error below. However, in light of the way in which the plaintiff advanced his arguments on the amended summons, it is appropriate at the outset to draw a basic distinction. That is between “jurisdictional error” affecting the Inspector’s exercise of the power in s 195 to issue the Notice, and “jurisdictional error” affecting the Commissioner’s exercise of the authority conferred on her by s 229 to conduct the external review.

9. The plaintiff’s goal is to establish that the Notice was invalid. To that end, the plaintiff identified certain matters which he described as “jurisdictional facts”, in the sense of conditions on the Inspector’s power to issue the Notice under s 195, which the plaintiff submitted were absent. The questions whether or not those facts existed, and whether or not they were necessary to give legal validity to the Inspector’s exercise of the power to issue the Notice, were issues before the Commissioner on the s 229 external review.

10. But the validity of the Inspector’s exercise of the s 195 power is not the question on the present application for judicial review. The present question is an entirely different one: whether the Commissioner exceeded the limits of the authority conferred on her by s 229 so as to fall into jurisdictional error in making the Decision. The plaintiff’s argument largely blurred the distinction between error in the Inspector’s exercise of the s 195 power and jurisdictional error by the Commissioner.

11. In order to determine whether there was jurisdictional error in the Commissioner’s decision, it is necessary to have some understanding of the specifics of the external review she was conducting. That in turn requires that some attention be paid to the statutory provisions going to the Inspector’s power to issue the Notice. But it is important not to be distracted by that exercise into thinking that the question whether there was jurisdictional error in Commissioner McDonald’s Decision turns on the existence of the matters necessary to engage the Inspector’s s 195 power.

The Inspector’s powers

12. The central legislative provisions going to the Inspector’s powers in the relevant period are as follows. The statutory language of most significance to the plaintiff’s challenge to the validity of the Notice is the words “workplace”, “business or undertaking” and “person conducting a business or undertaking” in the WHS Act.

13. Section 195 conferred the power to issue the Notice as follows.

195 Power to issue prohibition notice

(1)    This section applies if an inspector reasonably believes that—

(a)    an activity is occurring at a workplace that involves or will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard, or

(b)    an activity may occur at a workplace that, if it occurs, will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard.

(2)    The inspector may give a person who has control over the activity a direction prohibiting the carrying on of the activity, or the carrying on of the activity in a specified way, until an inspector is satisfied that the matters that give or will give rise to the risk have been remedied.

(3)    The direction may be given orally, but must be confirmed by written notice (a prohibition notice) issued to the person as soon as practicable.

14. The word “workplace” is defined in s 8(1):

8 Meaning of “workplace”

(1)    A workplace is a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.

…

15. The words “work”, “business” and “undertaking”, all appearing in the s 8 definition of “workplace”, are not defined.

16. The word “worker” is defined in s 7:

7 Meaning of “worker”

(1)    A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as—

(a)    an employee, or

(b)    a contractor or subcontractor, or

(c)    an employee of a contractor or subcontractor, or

(d)    an employee of a labour hire company who has been assigned to work in the person’s business or undertaking, or

(e)    an outworker, or

(f)    an apprentice or trainee, or

(g)    a student gaining work experience, or

(h)    a volunteer, or

(i)    a person of a prescribed class.

…

(3)    The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking.

Note.

A person may be both a worker, within the meaning of this section, and a person conducting a business or undertaking within the meaning of section 5.

17. The phrase “person conducting a business or undertaking” (PCBU) is defined in s 5:

5 Meaning of “person conducting a business or undertaking”

(1)    For the purposes of this Act, a person conducts a business or undertaking—

(a)    whether the person conducts the business or undertaking alone or with others, and

(b)    whether or not the business or undertaking is conducted for profit or gain.

(2)    A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association.

(3)    If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership.

(4)    A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking.

(5)    An elected member of a local authority does not in that capacity conduct a business or undertaking.

(6)    The regulations may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act.

(7)    A volunteer association does not conduct a business or undertaking for the purposes of this Act.

(8)    In this section, volunteer association means a group of volunteers working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association.

Note.

A person may be both a person conducting a business or undertaking, within the meaning of this section, and a worker within the meaning of section 7.

18. The concept of a PCBU plays a central role in the WHS Act. It is at the heart of the primary statutory duty of care in s 19, which relevantly provides:

19 Primary duty of care

(1)    A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—

(a)    workers engaged, or caused to be engaged by the person, and

(b)    workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

(2)    A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3)    Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable—

(a)    the provision and maintenance of a work environment without risks to health and safety, and

(b)    the provision and maintenance of safe plant and structures, and

(c)    the provision and maintenance of safe systems of work, and

(d)    the safe use, handling, and storage of plant, structures and substances, and

…

…

(5) A self-employed person must ensure, so far as is reasonably practicable, his or her own health and safety while at work.

Note.

A self-employed person is also a person conducting a business or undertaking for the purposes of this section.

19. Section 196 provides for the contents of a prohibition notice.

196 Contents of prohibition notice

(1)    A prohibition notice must state—

(a)    that the inspector believes that grounds for the issue of the prohibition notice exist and the basis for that belief, and

(b)    briefly, the activity that the inspector believes involves or will involve the risk and the matters that give or will give rise to the risk, and

(c)    the provision of this Act that the inspector believes is being, or is likely to be, contravened by that activity.

(2)    A prohibition notice may include directions on the measures to be taken to remedy the risk, activities or matters to which the notice relates, or the contravention or likely contravention referred to in subsection (1) (c).

(3) Without limiting section 195, a prohibition notice that prohibits the carrying on of an activity in a specified way may do so by specifying one or more of the following—

(a)    a workplace, or part of a workplace, at which the activity is not to be carried out,

(b)    anything that is not to be used in connection with the activity,

(c)    any procedure that is not to be followed in connection with the activity.

20. Failure to comply with a direction under s 195(2) or a prohibition notice issued under s 195(3) is an offence: s 197.

The plaintiff’s case before the Commissioner

21. The Notice was issued in the name of the plaintiff. It was (at least purportedly) issued pursuant to s 195(1)(b), that is, on the basis that the Inspector reasonably believed that “an activity may occur at a workplace that, if it occurs, will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard”: D[101].

22. The notice stated that the “activity” was “Working on Scaffolding or upper level balcony”. The Notice stated that the Inspector believed that the activity was likely to contravene s 19 of the WHS Act and cl 78 of the Work Health and Safety Regulation 2017 (NSW). (Clause 78 required a PCBU to manage the risks to health and safety associated with a fall.) The Notice directed the person with control over the activity to stop carrying it on until an inspector was satisfied of compliance with various directions, which included either eliminating the risk of falls from the scaffolding so far as reasonably practicable, or dismantling it.

23. The Commissioner said at D[4] that the plaintiff “took umbrage at having been issued with” the Notice for three reasons.

“First, he considers that as an owner-builder and the only person who had worked on the site for some months and as the only person who would be working at the site for at least six months, he was not subject to any provisions of the WHS Act. Secondly, he contends that the Inspector could not reasonably believe that an activity may occur that, if it occurred, would involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard, inter alia, because the scaffold was ‘isolated’. Thirdly, he believed that his neighbour, with whom he was in dispute over the boundary fence, had reported him to SafeWork NSW, not out of a genuine concern for safety, but rather, to cause him delay and harm. Notably, in the proceeding before me, Mr Visscher did not contend that Inspector Fripp’s assessment of the state of the scaffold was wrong, that is, that it lacked railings to prevent a person falling and he did not dispute that someone could be seriously injured if they fell from the scaffold. He did however dispute the Inspector’s assessment of the height of the scaffold, and as already noted, he contended that the scaffold was effectively isolated.”

24. The first and second reasons provide the context in which the plaintiff’s arguments as to jurisdictional error arise on the present summons.

25. The first issue, whether the plaintiff was subject to the WHS Act at all, raised questions of statutory interpretation before the Commissioner. The plaintiff’s position was that the construction site of his house was not a place where work was “carried out for a business or undertaking” so as to constitute it a “workplace”. On that basis, he said that the power in s 195 was not engaged. He also denied that he was a “person conducting a business or undertaking”, such that the primary duty of care in s 19 did not apply to him. Although the Commissioner accepted the plaintiff’s interpretation of the words, “business or undertaking”, she was against him on the facts, in particular, because of what she found was involved in being an owner-builder.

26. It might be noted that the words in s 195(1), “if an inspector reasonably believes that …”, invoke familiar concepts. See, e.g., George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 116. The parties appear to have proceeded on the footing that the “workplace” issue was to be determined objectively upon the proper construction of the WHS Act, rather than by reference to whether the Inspector reasonably (even if mistakenly) believed that the place where the scaffold was located was or might be a workplace. It is at least arguable that that was not the correct approach; cf. Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 at [41]-[46] per Gleeson CJ, Gummow, Hayne and Heydon JJ; [228]-[230] per Callinan J. But neither party pursued the issue when it was raised in argument, and it is by no means clear that it would have resulted in a different outcome below in any event, in light of the information imparted by the plaintiff to the Inspector before he exercised his s 195 powers.

24. Before the Commissioner the second issue, whether the Inspector could reasonably have believed that an activity involving a serious risk to health or safety might occur, turned largely on the facts. In particular, the plaintiff argued that the scaffold was not accessible to persons other than the plaintiff himself (i.e., because there was a security fence around the whole property: Tcpt, 12 March 2025, 70.24-27), such that the Inspector could not have reasonably believed that it gave rise to a serious risk to health or safety.

Jurisdictional error

28. As noted above, the question in this Court is not whether the Inspector validly exercised the power in s 195 to issue the Notice. The question is whether the Commissioner fell into jurisdictional error, such that the Decision in purported exercise of the power in s 229 lacked legal force.

29. In this context, jurisdiction is best understood as a body’s authority to decide, and jurisdictional error turns on the limits of the authority that has been conferred on the body: Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR 154; [2021] NSWCA 294 at [5] per Leeming JA. As his Honour said with some understatement at [4], “determining what amounts to ‘jurisdictional error’ has proven somewhat elusive.” The accepted doctrine is that it is neither necessary nor possible to attempt to mark the metes and bounds of jurisdictional error: Kirk at [71]; LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [3].

30. As to what constitutes jurisdictional error, an important distinction, identified in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 176 and discussed in Kirk at [67]-[68], is drawn between “inferior courts” and “other tribunals exercising governmental powers”. Leeming JA explained the distinction succinctly in Quinn at [8]:

“[A] court may be, and very commonly is, authorised to decide questions of law wrongly, while bodies which are not courts are ordinarily not authorised to decide questions of law wrongly. This distinction has a sharp impact on the identification of jurisdictional error. A body which is not a court will ordinarily commit jurisdictional error if it misapprehends a statute in a way which is material to its decision. On the other hand, a court which decides a question of law wrongly will ordinarily not thereby fall into jurisdictional error.”

31. Thus, it was said in Craig at 179 that if

“… an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

32. By contrast, as to the ordinary jurisdiction of a court of law it was said in Craig at 179-180:

“The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.”

33. However, a distinction based on the dichotomous characterisation of the body on which the authority to decide is conferred as either a “court” or an “administrative tribunal” may be of limited assistance in answering the question whether any identified error was jurisdictional in cases involving State bodies such as the Commission. That is because, as was explained in Kirk at [69], at the State level, where the separation of powers required by Ch III of the Commonwealth Constitution is absent, the distinction between a court and an administrative tribunal may not always be drawn easily. See to similar effect Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501; [2006] WASCA 219 at [105]ff per Martin CJ (Wheeler JA agreeing); The Returned & Services League of Australia (Victoria Branch) Inc v Liquor Licensing Commission [1999] 2 VR 203; [1999] VSCA 37 at [27] per Phillips JA (Charles and Buchanan JJA agreeing). The difficulties in characterising State bodies for this purpose are accommodated by the proviso in Kirk at [68]: “(at least in the absence of contrary intent in the statute or other instrument establishing it)”, which explains Leeming JA’s acknowledgement that bodies which are not courts are ordinarily not authorised to decide questions of law wrongly.

34. That being so, the important issue in determining whether any identified error made by the Commissioner was jurisdictional is not the label to be attached to the body, but the nature and extent of the authority to decide conferred on it. That is because “incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction”, rather than a jurisdictional error: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [163] per Hayne J, quoted in Kirk at [66].

35. In particular, to return to the rationale for the distinction between courts and other bodies: in respect of any particular question, whether of fact or law, was the Commissioner authorised not only to decide it, but also to decide it wrongly? The question whether any error was jurisdictional (that is, whether the error resulted in the decision made lacking legal force) is thus a question of statutory construction: LPDT at [4]; Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1; [2023] HCA 3 at [55] per Gordon, Edelman, Steward and Gleeson JJ.

36. In this case a combination of provisions of the WHS Act and the Industrial Relations Act conferred authority on the Commission to conduct the external review and made provision for how it was to be conducted.

37. By s 146(1) of the Industrial Relations Act, “[t]he Commission has the following functions— … (e) functions conferred on it by this or any other Act or law.”

38. Section 229 of the WHS Act conferred such a function. It provides as follows.

229 Application for external review

(1)    An eligible person may apply to the Industrial Relations Commission for review (an external review) of—

(a) a reviewable decision made by the regulator, or

(b) a decision made, or taken to have been made, on an internal review.

(2)    The application must be made—

(a)    if the decision was to forfeit a thing (including a document), within 28 days after the day on which the decision first came to the applicant’s notice, or

(b)    in the case of any other decision, within 14 days after the day on which the decision first came to the applicant’s notice, or

(c)    if the regulator is required by the Industrial Relations Commission to give the eligible person a statement of reasons, within 14 days after the day on which the statement is provided.

(3)    The Industrial Relations Commission may stay the operation of a decision that is the subject of an external review pending a decision on the review.

(4)    The Industrial Relations Commission may, on an external review, confirm, vary or revoke the decision concerned.

39. By s 162 of the Industrial Relations Act, the Commission may, subject to the Act, determine its own procedure. By s 163, the Commission is not bound to act in a formal manner, or by the rules of evidence, and may inform itself on any matter in any way that it considers to be just. It is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

40. Most significantly for present purposes, by s 175 of the Industrial Relations Act, the “Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument).”

41. By s 179(1), a decision of the Commission is “final”, subject only to certain rights of appeal (and, of course, to judicial review for jurisdictional error). Sections 187 and 188 provide for appeals by leave to the Full Bench of the Commission.

42. These matters indicate that Parliament conferred on the Commission authority to decide at least some questions of law, and to decide those questions wrongly: Secretary of the Ministry of Health v Australian Paramedics Association(NSW) (2022) 320 IR 198; [2022] NSWSC 1431 at [179] per Walton J.

43. It follows that the Commissioner is not to be equated with a mere administrative tribunal which falls into jurisdictional error whenever it identifies a wrong issue, asks itself a wrong question, ignores relevant material, or relies on irrelevant material. Not every error of law or misinterpretation or misapplication of statute by the Commissioner will be jurisdictional. The plaintiff’s submission in oral argument (Tcpt, 12 March 2025, 10.4-12) that everything which he identified in his written submissions as an error of law was a jurisdictional error on the part of the Commissioner must therefore be rejected.

44. However, the kinds of errors that will be jurisdictional when made by an inferior court will also generally be jurisdictional when made by the Commission. For example, as Gordon, Edelman, Steward and Gleeson JJ said in Stanley at [57] (footnotes omitted):

“In Craig, the Court gave examples of the circumstances in which an inferior court will fall into jurisdictional error, including, as is presently relevant, ‘if it misconstrues [the statute conferring its jurisdiction] ... and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case’, or ‘if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist’, or if it ‘disregards ... some matter in circumstances where the statute ... conferring its jurisdiction requires that that particular matter be taken into account ... as a pre-condition of the existence of any authority to make an order’.”

45. At the same time, the Commission is not to be automatically assimilated to an inferior court. It remains necessary to identify a specific error and to determine whether, as a matter of statutory construction, it was such as to cause the Commission to cease to be authorised to decide the particular matter. And precisely what will constitute an error may differ between courts and other tribunals. For example, as Leeming JA pointed out in Quinn at [7], although a material failure to accord procedural fairness will constitute jurisdictional error by either kind of body, courts are generally speaking obliged to adhere to a greater level of procedural fairness than are other tribunals.

The proceedings for judicial review in this Court

46. The plaintiff represented himself. The Grounds of review in his amended summons were at times somewhat discursive; they were amplified in written submissions.

47. Ground 1 in the amended summons sought an extension of time within which to commence the proceedings. This was explained on the basis that the plaintiff had pursued his application for leave to appeal to the Full Bench. The application for extension of time was not opposed. The delay is not great and there is no suggestion of prejudice to any party. In the circumstances of this case, the extension of time should be granted and the application addressed on its merits.

48. In addition to the materials in the joint court book, the plaintiff sought to rely on a red folder of documents, tabs 2-12 of which included transcripts of the proceedings before the Commissioner, copies of documents admitted into evidence before the Commissioner, copies of other documents which were not in evidence before the Commissioner, and an affidavit of the plaintiff made on 21 October 2024 (i.e., well after the Decision). Most of that material was directed in one way or another to complaints about procedural fairness. Although SafeWork NSW objected to that material, its counsel also referred to aspects of it in submissions.

49. I deferred ruling on the material. My ruling is that the material should be admitted for the purpose only of supporting the plaintiff’s case of jurisdictional error on the ground of denial of procedural fairness, as follows.

1. The red folder, other than tab 1 (a copy of the plaintiff’s written submissions in reply in this Court) is admitted as Exhibit P-1.

2. The material at tabs 3-12 is admitted only as evidence of matters which occurred or did not occur in the course of the proceedings before the Commissioner. That material is not admitted as evidence going to proof of any matter in issue before the Commissioner, such as the state of the building site on 7 December 2020, the events of that day or the state of mind of any person.

3. Tab 2, being the plaintiff’s affidavit of 21 October 2024, is admitted on the same limited basis. To the extent that it gives an indication of the nature of the evidence the plaintiff wished to lead in reply before the Commissioner, it is to be read on that basis and otherwise as submission.

4. The documents in MFI-1, being an outline of submissions by the plaintiff on the external review application, and an outline of submissions in reply, are to be added to tab 12 (see Tcpt, 12 March 2025, 5.5-50).

Ground 2

50. The context of Ground 2 is what the Commissioner said at D[77], which was not controversial (footnote to transcript omitted):

“There is no debate that Mr Visscher obtained development approval for the proposed building at Catherine Hill Bay on the basis that he would be an ‘owner-builder’ and that he intended to have work done to build the house by others, as well as himself. The estimated costs of the building works at the time Mr Visscher submitted his development application was $315,000, which meant that, under the Home Building Act1989 (NSW), Part 3, Div 3, Mr Visscher was required to obtain a[n] owner-builder permit. Applicants for such a permit have to complete a prerequisite training course, which includes a component dealing with work, health and safety. Mr Visscher had undertaken the course and had obtained an owner-builder permit.”

51. At D[90], the Commissioner had accepted the plaintiff’s evidence that the last time a contractor had worked on the site was 13 May 2019 when concrete was pumped into the block walls of the house. Before that, various people had worked at the site including a licensed surveyor, a licensed excavator, licensed concreters, licensed plumbers and licensed electricians.

52. Ground 2 was expressed as follows:

“A question of law. Was the Commissioner below correct in finding that an individual constructing a dwelling pursuant to an owner-builder permit is conducting an ‘undertaking’ within the meaning of that word in the phrase ‘person conducting a business or undertaking’ in ss 5 and 7 of the [WHS Act]?”

53. There followed two pages of sub-paragraphs and particulars. Although these referred to the “construction of the word ‘undertaking’”, at the hearing of the amended summons neither party disputed the construction which the Commissioner gave to the statutory language. Instead, the plaintiff affirmatively embraced that construction: Plaintiff’s Summary of Argument (PSA) at [18]-[21]; Tcpt, 12 March 2025, 24.19-22. SafeWork NSW expressly stated that it made no challenge to the construction given by the Commissioner to the term “undertaking”: Tcpt, 12 March 2025, 44.35. There is, thus, no question before the Court as to the construction of that word, nor any suggestion that the Commissioner’s construction gave rise to any jurisdictional error.

54. The Commissioner’s construction was that “an undertaking must have some characteristic in common with or which makes it similar or comparable to, a business”: D[131].

55. The plaintiff’s challenge is to the Commissioner’s application of that construction to the facts. The Commissioner found at D[143] and D[145]:

“… I consider that the construction of a dwelling pursuant to an owner-builder permit, whether by the permit holder doing the work themselves or by engaging and supervising others to do the work, is sufficiently similar to or comparable with, a business, or has attributes that otherwise indicate that the legislature intended that it would constitute an ‘undertaking’ within the meaning of ss 5 and 7 of the WHS Act.

…

Having found that the construction of the dwelling pursuant to an owner-builder permit was an ‘undertaking’, I also conclude that Mr Visscher was a PCBU within the meaning of s 5.”

56. The plaintiff described each of these findings as “a finding of jurisdictional fact and amenable to judicial review”: PSA at [15], [16]; see also at [22]-[26], [28]. The plaintiff submitted at [27], “Ground 2 turns on whether the Commissioner erred in finding the jurisdictional fact in [26.a.] above” (i.e., the finding at D[143]).

57. This submission disregards the fundamental distinction between the existence of the facts necessary to engage the Inspector’s powers and the question of jurisdictional error by the Commissioner. This same basic point was made by Meagher and Gleeson JJA in one of the procedural branches of this litigation, Visscher CA, at [15]-[19]:

“There remains one not insignificant matter which must be addressed, if only to explain why no order should be made as to the costs of Mr Visscher’s unsuccessful application. It arises in relation to a misconception on Mr Visscher’s part, and also on the part of the Full Bench, as to the jurisdiction which the Full Bench was exercising in determining SafeWork’s appeal from Commissioner Murphy’s orders as to the production of documents.

In his cross-appeal before the Full Bench, Mr Visscher argued that, as he was not in December 2020 a ‘person conducting a business or undertaking’ at his residential property within s 5 of the WHS Act, that ‘place’ could not be a ‘workplace’ within s 8(1). It followed according to this argument that any activity occurring there was not ‘at a workplace’ within s 195(1)(a). On that basis Mr Visscher contended that the works which he was then conducting were not subject to the WHS Act. Mr Visscher described this argument as raising ‘a question of jurisdiction’ for the Full Bench.

More accurately, it raised a question as to the valid exercise of the inspector’s power to give a direction under s 195(2) prohibiting the carrying out of the relevant activity, which was to be confirmed by a prohibition notice issued under s 195(3). That question properly arises in Mr Visscher’s ‘external review’ application. However, the outcome of that question could not raise any doubt as to Mr Visscher’s entitlement, as the person to whom the notice was issued, to have the ‘decision’ of the inspector to issue the notice reviewed under s 224; and his entitlement, in the event of an adverse decision, to pursue an external review before the Commission.

Nor could that argument raise any doubt as to the Commission’s jurisdiction to conduct an external review of that decision and to ‘confirm, vary or revoke the decision concerned’ (WHS Act, s 229(4)). Under s 146(1)(e) of the IR [Industrial Relations] Act, the functions conferred on the Commission include those ‘conferred on it by this or any other Act or law’. That jurisdiction was not dependent upon the inspector having made a valid or lawful ‘decision’. Nor did Mr Visscher’s status as an ‘eligible person’ depend on whether he was engaged ‘at a workplace’ when the relevant decision was made (WHS Act, ss 195(1), 224). He was and remains a ‘person to whom’ such a notice ‘was issued’, irrespective of whether that notice was invalid or of no effect (WHS Act, s 223 item 9).

Equally, the question as to the validity or otherwise of the prohibition notice had nothing whatsoever to do with the jurisdiction of the Full Bench. That jurisdiction was to hear SafeWork’s appeal from Commissioner Murphy’s interlocutory orders made in proceedings which engaged the Commission’s jurisdiction conferred by WHS Act, s 229(4) and IR [Industrial Relations] Act, s 146(1)(e).”

58. The findings made by the Commissioner at D[143] and D[145] were findings made within her authority to decide. Whether they were right or wrong does not, of itself, give rise to any question of jurisdictional error in the Commissioner’s Decision.

59. There remains the question whether there was jurisdictional error in the process by which the Commissioner arrived at those findings. In the amended summons, the plaintiff complains that the Commissioner erred by taking into account, at D[138], [139] and [141], what the plaintiff says were three irrelevant documents (although only the first two were pursued in submissions: PSA at [28]-[30]; Tcpt, 12 March 2025, 19.43-50; 23.42-47). Two of the documents, which were published by NSW Fair Trading and related to the owner-builder permit regime, had been tendered by SafeWork NSW without objection. The third document was SafeWork Australia’s “Interpretive Guideline – Model Work Health and Safety Act – The Meaning of ‘Person Conducting a Business or Undertaking’” (which the Commissioner had noted at D[136] both parties tendered in evidence).

60. The context in which those documents were mentioned, and the use the Commissioner made of them, were as follows.

61. At D[138], the Commissioner said that in “New South Wales it is illegal to construct a dwelling without either holding a contractor licence or an owner-builder permit: ss 12 and 32 of the Home Building Act 1989 (NSW).” The Commissioner then referred to a document published by NSW Fair Trading headed “Owner Builder permits”. It referred to the monetary thresholds (by reference to the value of work) at which it was necessary to have such a permit and to have completed certain training. It was not said that the document was inaccurate in these respects. The document also said, “As an owner-builder, you are responsible for the building work as a fully licensed builder would be.”

62. At D[139], the Commissioner said:

“Another Fair Trading document headed ‘Working as an owner-builder’ contains the following section:

What are my responsibilities?

As an owner-builder, you are responsible for the building work just as a fully licensed builder would be. This includes:

● overseeing and supervising all tradespeople

● ordering materials and managing the building site

● obtaining all necessary council and authority approvals

● ensuring that the financial, taxation and insurance requirements of the building work are met and full [sic] comply with the laws

● being aware of your obligations under the Workers Compensation Act 1987 and the Work Health and Safety Act 2011 to provide a safe work environment that complies with SafeWork NSW requirements. Significant penalties may apply if you don’t meet this obligation. Our dealing with hazardous materials page has more information on some possible risks, such as asbestos and lead.

● ensuring any contractor engaged is appropriately licensed and insured to do the work contracted for

● warranting that the materials and work will be fit for the purposes and result in a dwelling that can be occupied.

You can do a licence check online to verify the credentials of any tradespeople you work with, or call us on 13 32 20.

SafeWork NSW has more information about building and construction obligations and how to prevent incidents including the owner-builder animation below.”

63. The use which the Commissioner then made of these documents was limited:

“[140]   Whether these documents accurately set out the obligations of an owner-builder is unimportant. Plainly they do not substitute for the actual legislative provisions which stipulate the alleged responsibilities. What the documents do show however, are three important things:

(1)   an owner-builder assumes the role of a licensed builder, that is, a person who unarguably would be a PCBU, as by carrying on a trade they would be conducting a business;

(2)   undertaking the construction of a dwelling pursuant to an owner-builder permit involves elements of organisation and systems – to a very high degree and the legislature plainly regards it as a serious activity requiring considerable regulation; and

(3)    the construction of a dwelling by an owner-builder involves ‘work’ just as it would if a licensed builder were undertaking the task.”

64. The issue the Commissioner was addressing at this point was the application to the facts of the interpretation she had given to the statute: “an undertaking must have some characteristic in common with or which makes it similar or comparable to, a business”. In light of that construction, which is not in issue, it was undoubtedly appropriate for the Commissioner to compare the plaintiff’s role as an owner-builder with that of a licensed commercial builder, and more generally to take into account the elements of organisation and systems involved in the owner-builder role.

65. For that purpose, s 163(1)(b) of the Industrial Relations Act authorised the Commissioner to inform herself on any matter in any way she considered to be just. There was no jurisdictional error in her doing so in the manner identified at D[140]. The plaintiff’s complaint that there was “no admissible evidence” in support of the propositions in D[140] is unsustainable, given that s 163(1)(b) expressly provided that the Commissioner was not bound by the rules of evidence.

66. In any event, there was other evidence relevant to this issue before the Commissioner, and the relevant primary facts were largely not in issue. As noted above, it was not in dispute before the Commissioner that the plaintiff was required to have an owner-builder permit and to have completed the requisite training: see ss 12 and 31(2)(d) of the Home Building Act 1989 (NSW) and cl 17 of the Home Building Regulation 2014 (NSW). Nor was it in dispute before the Commissioner that the plaintiff had obtained such a permit, or that he had undertaken the requisite training. It was also not in dispute that he had in the past engaged tradespeople to perform particular tasks in the construction of his house (although none was involved on the day the Notice was issued). Indeed, the plaintiff himself accepted that he had been a person conducting an undertaking at the earlier times when he had engaged other people to do work on the house: Tcpt, 12 March 2025, 27.18-26.

67. Those matters were the context in which the Commissioner referred to the third document (SafeWork Australia’s “Interpretive Guideline”) at D[141]. The Commissioner said, “Given the above, it cannot be said that the construction of a dwelling is for a private or domestic purpose in the sense used in the second reading speech.” This was a reference to a passage from the second reading speech of the Work Health and Safety Bill 2011 quoted at D[125]:

“The Work Health and Safety Bill 2011 defines the primary duty holder as a person conducting a business or undertaking. Under this more comprehensive definition, a person holding a duty includes a body corporate, an unincorporated body or a partnership. The definition applies to activities whether they are conducted alone or with others, for profit or not for profit, and with or without the engagement of workers. This provision will cover a broad range of work relationships and business structures. It does not extend to a person’s private or domestic activities or to volunteer associations as they are defined in the bill. The concept of a person conducting a business or undertaking will provide greater certainty about workplace duties by removing the ambiguity that may arise, for example, between a principal contractor and subcontractors.”

68. The conclusion which the Commissioner reached on this issue was, as she indicated (“Given the above …”), based on the view she had reached about the plaintiff’s role as an owner-builder. The Commissioner then noted at D[141] that her view that construction of a dwelling was not for a private or domestic purpose was consistent with the approach taken in SafeWork Australia’s “Interpretive Guideline”, from which she then quoted. In particular, the Guideline stated that individual householders “who engage persons to carry out ad hoc home maintenance and repairs” should not be taken to be a PCBU. As the Commissioner said at D[142], “The building of a residential property is a major and important task – it is not ad hoc home maintenance or repair.”

69. The very limited use the Commissioner made of the Guideline in the paragraph with which the plaintiff took issue thus amounted to no more than acknowledging that the conclusion she had reached was consistent with the position adopted by SafeWork Australia independently of the dispute. There was no jurisdictional error in so doing.

70. The plaintiff submits at PSA [33] that “the existence of the fact in [26.a.] [i.e., the finding at D[143] that constructing a dwelling pursuant to an owner-builder permit is an ‘undertaking’] was not raised”. To the extent that this is a procedural fairness complaint, it is appropriate to have regard to the submissions made on behalf of SafeWork NSW dated 19 September 2023, that is, two months before the hearing in the Commission.

71. Paragraph 32 of those submissions was: “The Commission will be satisfied that the term ‘undertaking’ in both s 8 and s 5 of the WHS Act covers owner-builder construction projects.” Paragraph 49 submitted that the work of constructing a home as an owner-builder could not be considered to be private or domestic work. Paragraphs 47 and 48 expressly referred to the documents which are the subject of complaint under this Ground, which were identified as annexures to Mr Fripp’s affidavit. The plaintiff’s procedural fairness complaint is unsustainable here.

72. In the plaintiff’s Summary of Argument in Reply (PSAR) at [3], the plaintiff went further. He complained that while the Commissioner had indicated (in a quite different context) that she would adhere to the rules of evidence as much as possible, she did not do that in relation to the NSW Fair Trading documents, which he complained were hearsay. The plaintiff submitted: “The Commissioner is ‘actually biased’ against the Plaintiff.” That was a serious allegation, for which there is no proper basis. It should not have been made.

Ground 3

73. Ground 3 is that the Commission erred by providing insufficient reasons for the finding at D[143].

74. In light of the matters discussed above under Ground 2, no error of this kind is made out. The Commissioner’s process of reasoning is sufficiently stated.

Ground 4

75. Ground 4 is that the Commissioner “asked the wrong question: namely, whether by virtue of a person constructing a dwelling pursuant to an owner-builder permit that person is a person conducting an ‘undertaking’ within the meaning of that word in s 5 of the [WHS Act]”. The amended summons then repeats the particulars to Ground 2.

76. The plaintiff’s written submissions argue that the correct question is as follows at PSA [43]: “Is an individual person a ‘person conducting a business or undertaking’ after ceasing to conduct any business or undertaking for 574 days whilst building his home, solo and in isolation?”

77. In stating that the Commissioner asked the wrong question (as set out above), Ground 4 oversimplifies the Commissioner’s reasoning process on the “undertaking” issue, and ignores important aspects of it. For example, at D[144] the Commissioner specifically addressed (and rejected) the plaintiff’s argument that at times when he did not engage others to perform work on site he was not engaged in an undertaking.

78. To the extent that this Ground suggests that it was an error for the Commissioner to consider, as part of a reasoning process leading to the conclusion that the plaintiff was conducting an undertaking, the question whether he was constructing a dwelling pursuant to an owner-builder permit, the suggestion should be rejected. That is particularly so, given that the plaintiff did not dispute that he had been conducting an undertaking when he engaged tradespeople to work on site.

79. As to the plaintiff’s formulation of the question, it is circular (it assumes cessation of the “undertaking”); it turns on matters not established (e.g., “in isolation”); and it is far too narrow to capture all the issues relevant to the application of the statutory language to the facts.

80. In any event, questions of construction of the WHS Act and of the application of that Act to the facts were questions within the jurisdiction of the Commissioner in conducting the external review. For that purpose, the Commissioner’s authority extended to identifying the issues. It follows that even if the Commissioner had asked herself the wrong question, that would be an error within jurisdiction.

81. The plaintiff’s failure to observe the distinction between the facts necessary to engage the Inspector’s power to issue the Notice pursuant to s 195 on the one hand, and jurisdictional error by the Commissioner on the other, was stark here. In his submissions in reply at PSAR [5(k)], the plaintiff said: “In the circumstances, the threshold jurisdictional issue for the Commissioner is to be satisfied on a question of jurisdictional fact of whether the Inspector had jurisdiction under the WHS Act to issue the prohibition notice. Accordingly, the right question to ask is set out in the PS at [43].” The attempt to collapse the distinction in that way was wholly misconceived.

82. To the extent that this Ground otherwise repeats the arguments made under Ground 2, it fails for the same reasons.

Ground 5

83. The gist of Ground 5 is that “the plaintiff was denied procedural fairness by being denied an opportunity to adduce rebuttal evidence against that of a key witness for the Respondent; namely, the evidence of a SafeWork Inspector Mr Fripp, given during cross-examination. (T22/13-14 to 22-37)”.

84. It is common ground that the plaintiff did not have prior notice of one aspect of the Inspector’s evidence, which concerned the availability of access to the balcony via a stairway inside the house (what might be called the “surprise” evidence). The plaintiff’s position is that on the day of the Inspector’s visit, there had been “an ‘air gap’ of about 4.7 metres between the top of the internal staircase and the balcony” and that “it was not possible to walk on a system of beams between the top of the staircase to the balcony”: at PSA [60]. That was the effect of the rebuttal evidence the plaintiff complains he was denied the opportunity to give. (Whether the Commissioner did deny the plaintiff that opportunity may be debateable, as discussed below.)

85. Before turning to the Decision, it is necessary (1) to identify the nature of the procedural fairness complaint, and (2) to explain the context in which the Commissioner referred to this aspect of the Inspector’s evidence.

86. As to the first matter, the plaintiff’s complaint is not that the issue was never raised at the hearing. He says instead that when the issue arose at the hearing he was not given an opportunity to respond to it by further evidence (although it should be noted that the plaintiff was permitted to cross-examine on it, and he did so). The plaintiff’s complaint is that in those circumstances it was procedurally unfair for the Commissioner to accept the Inspector’s evidence that it was possible to access the balcony via the internal staircase and to rely on that in deciding to dismiss the external review. As will be seen, that is not an accurate account of the Commissioner’s reasoning.

87. As to the second matter (the context in which the evidence was mentioned), the power to issue a prohibition notice conferred on an inspector by s 195 is engaged “if an inspector reasonably believes” various matters, including, in subs (1)(b), that an activity may occur at a workplace that, if it occurs, will involve a serious risk to the health or safety of a person. The activity here was, relevantly, working on the scaffold or the balcony. The possibility that that activity might occur depended on the possibility of access to the platform of the scaffold and/or the balcony, by whatever means.

88. As to reasonable belief, the law was explained in George v Rockett at 116 by comparing belief with suspicion:

“The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.”

89. The Commissioner’s discussion of these issues at D[150]-[151] was to the same ultimate effect. The question for the Commissioner was thus whether at the time the Inspector issued the Notice there were grounds which could reasonably induce the inclination of the mind towards assenting to the proposition that it was possible to access the scaffold and/or the balcony, by whatever means.

90. A basic difficulty with the plaintiff’s procedural fairness complaint is that the evidence the plaintiff wanted an opportunity to lead by way of rebuttal was directed to a different question. It was different in two respects: the evidence was directed to showing (1) that it was in fact impossible to access the balcony or scaffold (2) via the internal staircase.

91. The relevant passages in the Decision are as follows (footnotes omitted).

“[109]   One last matter regarding the events of 7 December 2020 requires comment. Considerable time was spent by Mr Visscher cross examining Inspector Fripp as to how access might be obtained to the platform of the scaffold in circumstances where, as the Site Photo showed and as Inspector Fripp agreed, there was no stair or ladder access to the scaffold itself. Mr Visscher’s position was that the scaffolding posed no risk in circumstances where there was no stairway access to the platform, where the site itself was fenced off and where he did not intend to have other workers on the site for six months. Mr Visscher submitted that the scaffold was essentially ‘isolated’, consistent with the ‘Hierarchy of control measures’ set out in reg 36 of the WHS Regulation, as referred to in Part 1.7 of SafeWork’s Code of Practice Construction Work, August 2019.

[110]   Although it was not mentioned in his affidavit, in cross examination Inspector Fripp stated that there was an internal stair allowing access to the balcony and from there one could gain access to the scaffolding. He did not take a photo of this internal stair and it is not visible in the Site Photo. Mr Visscher attempted to challenge the Inspector’s evidence that access to the balcony was possible from the partially completed internal staircase. Ultimately, I posed the following question to Inspector Fripp which elicited the following response:

[‘]Q: How did you know [you could walk from the top of the internal staircase to the balcony?]? Did you go inside the house, Mr Fripp?

A: Yes, I was standing in that immediate vicinity. I did not walk up that staircase ‘cause it was not safe to do so. But I could see that you could make access to the balcony ‘cause there was a whole lot of equipment up there. So, one would carry that equipment up there. So, one would carry that equipment up there, unless you got a crane and craned it in, so I formed the belief that you could make access.[’]

[111]   I accept that prior to issuing the verbal direction, by observing the equipment on the balcony, that the Inspector formed a belief that one way or other, access to the balcony, and from there the scaffolding, was possible. As it turns out such a belief was justified given Mr Visscher’s later discussion with the Inspector about the work he had done and proposed to do on the balcony. I also accept that in arriving at his belief that access to the balcony was possible, the Inspector observed an internal stairway under construction and presumed that was the method by which access to the balcony was obtained. Whether the partially constructed stairway was in fact the method of access is not important. The Inspector formed a reasonable belief based on the equipment on the balcony that access to the balcony was possible.

[112]   Inspector Fripp otherwise did not accept that the scaffolding was ‘isolated’ in accordance with industry practice, as while there were no stairs, it had not been ‘danger’ taped off, nor was there any signage to warn a person not to use the scaffold. He explained that it would be ‘common right across industry’ and he had seen it many times where workers would use the horizontal components of a scaffold to climb up like a ladder, even where there was no established scaffold ladder. Inspector Fripp accepted, that someone choosing to access the scaffold in this way, would be making a ‘reckless decision’.

…

[152]   I set out at [71] the reasons why Mr Visscher contended that the Inspector could not have formed the required objectively reasonable belief. I accept that some of the matters of fact to which Mr Visscher referred are made out on the evidence, however they are not sufficient to overcome the Inspector’s evidence that he formed the belief:

(1)   ‘that an activity was likely to occur at the site that involved a serious risk to the health and safety of one or more persons [and] that the serious risk would emanate from an immediate exposure to a hazard of the non-compliant scaffold, which was incapable of preventing a fall’; and

(2)   ‘that [the scaffold] was likely to be used in the future because the house was under construction and the scaffolding was at the front of the house and it was there for a purpose, to build the house’.

[153]   The fact that the house was under construction is incontrovertible. At some point, in circumstances where there is no suggestion that the construction had been abandoned, indeed the evidence is that Mr Visscher was working on the construction at the time of the Inspector’s visit, work would necessarily be done toward completing the construction. In circumstances where a scaffold was erected at the front of the house, which could be easily accessed, it was entirely reasonable for the Inspector to form the view that an activity may occur at a workplace that, if it occurs, will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard.

…

[160]   Mr Visscher contended that no workers on the site were exposed to a hazard. At the risk of repetition, Mr Visscher was a worker and would be exposed to the hazard if he accessed the scaffold, or for that matter the balcony, as it was not protected by a suitable scaffold. It was reasonable for the Inspector to believe that Mr Visscher may access the scaffold, or the balcony, given the state of the construction, and the reasonableness of his belief was subsequently borne out by Mr Visscher telling the Inspector that he had intended to clean the adhesive from the underside of the balcony and complete the installation of decking on the inner side of the balcony.

[161]   Mr Visscher contended that the only way to access the scaffold, in the absence of stairs or ladders, was to climb it on the outside, ‘like a monkey’. Essentially Mr Visscher contended that the scaffold was isolated and so the impugned activity was not going to occur. I discussed this contention at [109] to [112]. I accept the Inspector’s evidence that, based on his observation of equipment on the balcony, access to the balcony and from there the scaffolding, was possible. He also explained that persons could also climb the scaffolding using the horizontal pieces. He explained that to ‘isolate’ the scaffolding it ought to have been taped off with appropriate signage warning against any use of the scaffold.”

92. Paragraph 110, and the third and fourth sentences of D[161], contain references to the evidence of which the plaintiff complains, to the effect that it was possible to access the balcony via the internal staircase. But the Commissioner’s dispositive findings on the question of reasonable belief expressly did not depend on that evidence:

1. “I accept that prior to issuing the verbal direction, by observing the equipment on the balcony, that the Inspector formed a belief that one way or other, access to the balcony, and from there the scaffolding, was possible”: at D[111].

2. “Whether the partially constructed stairway was in fact the method of access is not important. The Inspector formed a reasonable belief based on the equipment on the balcony that access to the balcony was possible”: at D[111].

3. “It was reasonable for the Inspector to believe that Mr Visscher may access the scaffold, or the balcony, given the state of the construction”: at D[160].

93. Those dispositive findings about reasonable belief did not turn on the question whether access was in fact possible; still less that access via the staircase was in fact possible. These were findings that there were other reasonable bases for the Inspector’s belief, including the presence of equipment on the balcony. It would have been no answer to those findings for the plaintiff to lead rebuttal evidence that access to the balcony via the staircase was not in fact possible.

94. As noted above, the plaintiff’s procedural fairness complaint is that in deciding to dismiss the external review, the Commissioner relied on evidence that it was possible to access the balcony and ultimately the scaffold via the internal staircase, which the plaintiff was denied an opportunity to rebut by evidence that it was “not possible” to do so. However, since the Commissioner did not rely on such evidence in making her dispositive findings, the procedural fairness complaint fails on its own terms.

95. It is also clear from D[112], and from the fifth sentence of D[161], that the Commissioner accepted the Inspector’s evidence that access to the scaffold was also available via its horizontal components, which could be used like a ladder. That was an independent basis on which the Commissioner relied in making her dispositive findings that the Inspector reasonably believed that it was possible to access the scaffold (and, it would follow, from there, the balcony: see D[110] and D[111], both set out above, and see the evidence set out at [97] below). That being so, even if the Commissioner had relied on the evidence about the staircase in making her dispositive findings (which she did not), and even assuming that that had involved a denial of procedural fairness (by denying the plaintiff an opportunity of rebuttal), any such error would not have been material to the outcome in the sense explained in LDPT at [14]-[16]. This is a case where it would be affirmatively concluded that had the alleged error not been made, that is, even without reliance on the evidence about access via the staircase, the outcome would inevitably have been the same.

96. Those conclusions are reached without having to resolve three additional issues connected with the way the plaintiff conducted the hearing before the Commissioner. As explained below, it is contestable whether those issues would be resolved in favour of the plaintiff. In considering those issues it should, however, be remembered that the plaintiff was self-represented before the Commissioner.

97. The first issue is whether there could be any procedural unfairness arising from the Inspector’s evidence about access via the internal staircase, given the circumstances in which that evidence emerged. The plaintiff was cross-examining Mr Fripp about a photograph he had taken on the day he issued the Notice:

“Q. Your evidence is that that is the scaffolding as you saw it on the day. Now, when you saw the scaffolding on the day as shown in that photograph, you can see there is no ladder or stair access to the scaffolding. Do you agree with that?

A. This photo does not contain the view of the stair access to the scaffolding.

Q. It doesn’t show the stair access? Are you saying that there was a stair access to the scaffolding?

A. So, there was an internal stair, I guess you’d call it a stairwell or stair access that is part of the construction of the house. So, one would be in the house, they would walk up the internal stairs to the top level of the structure, they would walk out onto the balcony, and that is the internal stair access I am referring to in my conversation right now. So, internally, access to that balcony and down onto the scaffolding via an internal stairwell was there on the day; that is not in this photograph.

Q. Is this your evidence? You’re putting it to the Commissioner now that there was stair access to the balcony and the scaffolding by way of an internal staircase? Is that what you’re saying?

A. Correct. That internal staircase was under construction, although a person could make access up that internal stairway out onto the balcony and down onto the scaffolding.”

(Tcpt, 22 November 2023, 13.23-44; emphasis supplied.)

98. (It should be noted that this was several pages of transcript before the exchange at 18.2-11, which the Commissioner quoted at D[110], set out above.)

99. If the cross-examiner had let the topic drop after the first answer (“This photo does not show …”), that might have been the end of the matter. There had been no prior suggestion of “stair access to the scaffolding”, and that first answer was not evidence that there was such stair access; it was evidence that the photograph in evidence did not contain any view of stair access. To the extent that the Inspector’s answer might be taken as evidence of such stair access, the plaintiff could have argued that the Commissioner should disregard the Inspector’s evidence about access via the internal staircase, on the basis that it came as a surprise. Instead, the cross-examiner pressed on. He squarely put the question to the Inspector: “Are you saying that there was a stair access to the scaffolding?” That question, and the one which followed it, elicited the basic evidence which the plaintiff complains he was denied an opportunity to rebut. It was, thus, the plaintiff who introduced the whole topic into the case.

100. The second issue is whether the plaintiff in fact made, or at least pressed, an application to lead rebuttal evidence which the Commissioner refused. The point at which the plaintiff first raised the issue of rebuttal evidence came directly after the passage of transcript which the Commissioner quoted at D[110], set out above. The plaintiff asked, “Will I have an opportunity - I want to rebut what the witness just said in evidence. Will I have opportunity to produce rebuttal evidence?” The Commissioner initially replied, “No, you don’t, Mr Visscher. There would need to be a very significant reason why there’s not already evidence in that you can point me to to rebut that evidence.” The discussion then moved to the reason why there was no evidence already in the case to rebut the Inspector’s evidence about the internal staircase, and the fact that it was the plaintiff himself who had introduced the topic of stair access to the scaffold: Tcpt, 22 November 2023,18.21-49. The plaintiff did not then return to the question of rebuttal evidence, which seems to have fallen away.

101. Instead, the plaintiff followed a different forensic path. He asked if he could speak briefly with the witness out of the room; a request that was denied. The Commissioner then referred to a photograph of the internal staircase which was already in evidence, identified as W3. (The photograph was not taken on the day of the Notice.) The Commissioner said:

“COMMISSIONER: You can put to him, Mr Visscher, you can put to him that the time he saw that, it looked as it does in the photo, W3, and that there was no access. And he can either confirm or deny that, he may deny it.

APPLICANT: Thank you. Rightio.”

(Tcpt, 22 November 2023, 19.13-17)

102. The plaintiff then cross-examined the Inspector on the photograph: Tcpt, 22 November 2023, 19.19-43. The Inspector said, “I do not recall what [the staircase] looked like from memory, as I did not take a photograph of it.” When the Commissioner asked whether the Inspector would accept that it was possible that one couldn’t use the internal staircase to access the balcony, his answer included, “I don’t, I don’t know. It would be possible, I would assume.” Those were good answers for the plaintiff. They explain the Commissioner’s statement at D[111], quoted above: “I also accept that in arriving at his belief that access to the balcony was possible, the Inspector observed an internal stairway under construction and presumed that was the method by which access to the balcony was obtained.”

103. Viewing those matters as a whole, including the forensic path the plaintiff followed, it is contestable whether the plaintiff pressed an application for rebuttal evidence which was then refused.

104. The third issue is as follows. Even if the effect of the exchanges referred to above is that the Commissioner is to be taken to have refused an application to lead evidence in reply, that was a discretionary decision for the Commissioner in the conduct of the external review. The plaintiff has not attempted to challenge that exercise of discretion on any recognised basis, other than by reference to the result (i.e., application refused), which he claims is procedurally unfair. In circumstances in which the plaintiff himself elicited the evidence in question and then followed the forensic path that he did, the outcome of the Commissioner’s discretionary decision to refuse the application might not be seen as so clearly unreasonable as to demonstrate, without more, that the discretion miscarried. Put another way, it might not automatically follow from the fact that the evidence came as a surprise that it was procedurally unfair in the circumstances to deny the plaintiff an opportunity to rebut the evidence which he himself elicited. The plaintiff might be thought to be fixed with the result of following the forensic path that he did.

105. If that were so, there could be no objection of procedural unfairness in the Commissioner’s relying on the Inspector’s evidence that it was possible to access the balcony via the internal staircase.

106. However, as explained above, the Commissioner did not use the Inspector’s evidence about stair access in making her dispositive findings. It is thus not necessary to determine whether the way in which the plaintiff conducted the hearing before the Commissioner would have been decisive in its own right on the question of procedural unfairness. Since the plaintiff was self-represented, it is preferable not to do so. Although a self-represented litigant will be fixed with their own forensic choices, the court will necessarily be slower to attribute a forensic choice to the conduct of a self-represented litigant than to one represented by solicitors and counsel.

107. Ultimately, the procedural fairness complaint fails for two reasons that are independent of the plaintiff’s conduct of the hearing.

1. The Commissioner’s dispositive findings were not ultimately based on the “surprise” evidence in any event.

2. This is a case where it would be affirmatively concluded that had the alleged error not been made, the outcome would inevitably have been the same.

108. It should finally be noted that in his written submissions, the plaintiff went much further than a procedural fairness complaint. In chief he submitted that he had corresponded with the solicitor for SafeWork NSW “with conclusive proof that the Inspector had lied to the Commissioner”: at PSA [63]. That “proof” turned essentially on the objective impossibility of access via the internal staircase. In reply, he submitted at [6f)] that his 21 October 2024 affidavit “provides cogent evidence proving that the Inspector lied to the Commissioner” and at [7b)] that “the Court should be satisfied that the Inspector is an unmitigated liar and should be accorded no credit whatsoever.” Those allegations were serious, unnecessary (given the nature of the procedural fairness complaint) and inappropriate. The plaintiff’s affidavit of 21 October 2024 has not been admitted to prove the truth of the contents of those allegations. These submissions must be rejected.

109. So too must be the plaintiff’s submissions that the solicitor for SafeWork NSW had any duty as an officer of the Court to bring the plaintiff’s correspondence to the attention of the Commissioner. That submission misconceives the function of an opposing party’s solicitor. Had there been any material which warranted a re-opening application (which I do not accept), it would have been for the plaintiff to take such steps as were appropriate to make one.

Ground 6

110. Ground 6 is: “The Commissioner erred by finding that the Inspector held a reasonable belief within the meaning of s 195 of the WHS Act. That finding is against the evidence and the weight of evidence.” There follow a number of subparagraphs and particulars, including to the effect that the Commissioner erred in accepting the evidence of the Inspector. In his written submissions, the plaintiff expands upon these points including by reference to various matters said to go to the Inspector’s credit, or otherwise to be inconsistent with the existence of a reasonable belief, and by identifying inferences that the plaintiff says the Commissioner should have drawn. In substance, the plaintiff sets out to re-run the case on the facts.

111. The basic problem with this Ground is that the question whether the Inspector held a reasonable belief for the purposes of s 195 was a question clearly within the Commissioner’s jurisdiction. The Commissioner understood the nature of the function entrusted to her. She considered the requirements of the statute, in particular, what constitutes a reasonable belief (at D[150]-[151]), and applied the statute to the facts as she found them. It was a matter for her to determine what evidence she accepted and the weight to be given to it.

112. That is enough to dispose of this Ground of complaint; that it does not raise any jurisdictional error.

113. But the plaintiff’s specific arguments as to error are unpersuasive in any event. For example, in relation to the finding at D[111] that the “Inspector formed a reasonable belief based on the equipment on the balcony that access to the balcony was possible”, the plaintiff submitted that there was no evidence that the Inspector formed a reasonable belief based on the equipment on the balcony: Tcpt, 12 March 2025, 67.8-10. But the Inspector’s evidence quoted at D[110], set out above, was as follows (emphasis supplied): “… I could see that you could make access to the balcony ‘cause there was a whole lot of equipment up there … so I formed the belief that you could make access.” The plaintiff’s submission requires the words “up there” to mean something other than on “the balcony”. That would be a strained reading of the evidence. It was certainly open to the Commissioner to read that evidence in the way she did.

110. It was also open to the Commissioner to find, as she did, that the Inspector gave evidence honestly; she said that she had a good deal of faith in his account of events because of the freedom with which he answered questions against the interest of SafeWork NSW: D[76]; see D[102]ff.

111. The plaintiff relied on evidence that arose out of the fact that after the Inspector gave his oral direction on 7 December 2020, the plaintiff had recorded part of their discussion. That included the Inspector saying, “You can do what you want when I’m not here”, and “If I’m not here I don’t observe it, I don’t care”: D[106]. The Commissioner dealt with that evidence commencing at D[102]; it was the evidence against interest to which she had referred at D[76]. Perhaps the low point was a passage in the Inspector’s oral evidence, quoted at D[107], in which he explained, in answer to a question asked by the Commissioner, that after spending much time in discussion with the plaintiff, he had been “at my limit”. He went on to say, “if an old bloke gets on top of a scaffold and wants to build his house and fall off and die and leave his missus and his kids, no skin off my nose, and I don’t even care”.

112. It was a matter for the Commissioner how she dealt with that evidence. There was no error in what she said at D[108]:

“While I consider Inspector Fripp’s remarks to be regrettable, given his role to ensure compliance with legislation designed to ensure health and safety, they are perhaps understandable from what might be described as a ‘human’ point of view for the reasons he explained. I also commend Inspector Fripp for his plainly honest response to my question. I do not consider that what Inspector Fripp said to Mr Visscher undermines the Inspector’s belief as stated in the Prohibition Notice.”

117. In any event, the important point is that even if there had been error in that finding, the error would have been made within jurisdiction.

118. Ground 6 is ultimately a complaint about the end result of the fact-finding process. The plaintiff has not identified any jurisdictional error affecting the Commissioner’s finding as to the reasonableness of the Inspector’s s 195 belief. This Ground fails.

Ground 7

119. This Ground is that the Commissioner relied on “unsafe evidence” in making the finding as to reasonable belief at D[153] set out above. The sub-paragraphs repeat the plaintiff’s complaints about the findings that the scaffold could easily be accessed; that the access was via the internal stairway and balcony; and that the plaintiff was denied an opportunity to lead evidence in rebuttal.

120. The Ground adds nothing to those addressed above and fails for the same reasons.

Ground 8

121. Ground 8 is that the Commissioner erred by finding that the plaintiff had intended to use the scaffolding later on 7 December 2020 or very shortly thereafter to clean up adhesive which had dripped from the left side of the decking overlapping the front edge of the balcony. It is said that this finding was against the evidence and the weight of the evidence.

122. A ground of that type does not identify jurisdictional error. The Commissioner was authorised to find the facts relevant to the reasonableness of the Inspector’s s 195 belief. The Commissioner referred to the plaintiff’s evidence on the topic of the work carried out on 6 and 7 December 2020, including by quoting large parts of the plaintiff’s statement at D[92]. Determining the weight of the plaintiff’s evidence, together with all the other evidence before her, was a matter for her.

123. In any event, the particular finding, which is at D[103], was not dispositive. That is clear from the context that precedes and follows it.

“[102]   It seems that very shortly after Inspector Fripp issued an oral direction to Mr Visscher to stop any work on the scaffold or upper balcony, Mr Visscher began recording the discussions between himself and the Inspector. An agreed transcript of that recording was tendered in evidence by Mr Visscher. I discuss below two aspects of what is recorded in the transcript, however ultimately nothing recorded is determinative of the outcome in this matter.

[103]   The agreed transcript of the recorded part of the conversation reveals that Mr Visscher told the Inspector, shortly after he commenced the recording, that his ‘last job’ was to clean up some adhesive which had dripped from the left side of the decking overlapping the front edge of the balcony. It is clear from what was said that, but for the issue of the direction not to work on the scaffolding or balcony, Mr Visscher had intended to undertake that work on that day or very shortly thereafter, and he proposed to use the scaffold to do it:

[The Commissioner then quoted a large section of the transcript of the conversation.]

[104]   Inspector Fripp agreed that Mr Visscher only told him that he intended to clean up the drips of adhesive after he had issued the verbal direction not to work on the scaffold. It therefore was not a matter that formed a basis for the Inspector’s belief justifying the issue of the Prohibition Notice.”

(Footnotes omitted.)

124. The Commissioner’s finding of reasonable belief was made at D[153], which it is convenient to repeat.

“The fact that the house was under construction is incontrovertible. At some point, in circumstances where there is no suggestion that the construction had been abandoned, indeed the evidence is that Mr Visscher was working on the construction at the time of the Inspector’s visit, work would necessarily be done toward completing the construction. In circumstances where a scaffold was erected at the front of the house, which could be easily accessed, it was entirely reasonable for the Inspector to form the view that an activity may occur at a workplace that, if it occurs, will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard.”

125. That finding was independent of what the plaintiff said after the Inspector had issued the verbal direction not to work on the scaffold. The Commissioner then observed at D[154]:

“The reasonableness of the Inspector’s belief, formed before he issued the oral direction, is borne out by subsequent events. After issuing the oral direction, Mr Visscher informed him that he had intended to use the scaffold to clean up the adhesive drips on the underside of the decking he had installed on the balcony. This information did not form part of the factual foundation of the Inspector’s belief, but it entirely supports a finding that the Inspector’s belief, formed by his observation of a defective scaffold in front of a partially complete house, was indeed reasonable.”

126. That was no more than a common sense check of the process of reasoning set out at D[153]. The finding at D[103] was thus not material to the Decision.

127. No jurisdictional error has been shown. Ground 8 fails.

Grounds 9, 10, 11 and 12

128. The plaintiff expressly abandoned these grounds: at PSA 15.

Conclusion and orders

129. The plaintiff has failed on all Grounds. As between the active parties, the plaintiff and SafeWork NSW, costs should follow the event.

130. The orders of the Court will be:

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.

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Decision last updated: 19 May 2025