Visscher v SafeWork NSW (No 2)

[2022] NSWSC 1253

Supreme Court

New South Wales

Medium Neutral Citation:

Visscher v SafeWork NSW (No.2) [2022] NSWSC 1253

Hearing dates:

06 July 2022

Date of orders:

06 July 2022

Decision date:

06 July 2022

Jurisdiction:

Common Law

Before:

Garling J

Decision:

Dismiss the Notice of Motion filed by the first defendant on 14 March 2022.

Catchwords:

CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Where arguable case for the determination of the Summons — Application dismissed

EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Judicial review — Jurisdiction of the Full Bench of the Commission may include hearing and determining an application for leave to appeal and an appeal against an interlocutory decision of a single Commissioner — Unnecessary determination of facts adverse to a party may constitute jurisdictional error

Legislation Cited:

Industrial Relations Act 1996 Ch 4, Pt 7, s 179

Supreme Court Act 1970 s 69

Uniform Civil Procedure Rules 2005 rr 13.4, 14.28, 28.2

Work Health and Safety Act 2011 ss 5, 195, 197, 224, 229

Cases Cited:

A v Dept of Communities and Justice [2021] NSWSC 937

Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58

Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1

Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19

Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112

SafeWork NSW v Visscher (No 3); Visscher v SafeWork NSW (No 2) [2021] NSWIRComm 1099

Visscher v SafeWork NSW [2022] NSWSC 908

Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Texts Cited:

Not applicable

Category:

Procedural rulings

Parties:

Tim Visscher (P)
SafeWork NSW (D1)
The Industrial Relations Commission of New South Wales (D2)

Representation:

Counsel:
Self-Represented (P)
I Latham (D1)
Submitting appearance (D2)

Solicitors:
Legal, Corporate Services, Department of Customer Service (D1)
Crown Solicitor for New South Wales (D2)

File Number(s):

2022/31494

Publication restriction:

Not applicable

Judgment

1. The plaintiff is an owner-builder at Catherine Hill Bay, a suburb in the Lake Macquarie region. The plaintiff and the scaffolding which he had erected or caused to be erected around his house were the subject of a report by a member of the community regarding safety concerns (“the Report”) to the first defendant, SafeWork NSW (“SafeWork”), via SafeWork’s “Speak Up App”, which allows members of the public to report safety concerns.

Prohibition Notice

2. On 7 December 2020, a SafeWork Inspector attended the plaintiff’s property and issued him a prohibition notice (“the Prohibition Notice”) under s 195 of the Work Health and Safety Act 2011 (“WHS Act”). The plaintiff was prohibited from performing work on the scaffolding or the upper-level balcony of his house. It is an offence to contravene a prohibition notice: s 197 of the WHS Act.

3. On 14 December 2020, the plaintiff made an application to SafeWork, pursuant to s 224 of the WHS Act, for an internal review of the Inspector’s decision to issue the Prohibition Notice. On 24 December 2020, the internal review affirmed the Inspector’s decision.

Proceedings in the Industrial Relations Commission

4. On 11 January 2021, the plaintiff applied to the Industrial Relations Commission (“the Commission”), pursuant to s 229 of the WHS Act, for what is commonly referred to as an external review of the decision to issue the Prohibition Notice. In fact, the Commission upon this review can confirm, vary or revoke the decision made on the internal review.

5. On 8 February 2021, the plaintiff for the purposes of the external review, having first obtained leave, issued a Notice to Produce to SafeWork which required the production of all documents relating to the Report and, also, all documents relating to the Prohibition Notice. On 11 February 2021, SafeWork produced documents to the Commission, some of which were partly redacted to avoid the disclosure of the identity of the person who made the Report.

6. On 12 February 2021, the plaintiff filed a Notice of Motion by which he sought orders which required the production of the same documents but without redactions. SafeWork objected to the orders sought on the basis of a claim for public interest immunity.

7. Following argument on 7 April 2021, Commissioner Murphy made orders which required SafeWork to produce the documents with some of the redactions removed. In brief summary, Commissioner Murphy accepted – and it was not in issue between the parties – that public interest immunity could attach to documents so as to protect the identity of people who report safety concerns to SafeWork. Commissioner Murphy then determined that certain passages did not in fact tend to disclose the reporting individual’s identity or, alternatively, even if the information may assist in the identification of that person, the plaintiff’s interest in having access to the information outweighed the public interest in preventing disclosure of it.

8. On 28 April 2021, SafeWork, pursuant to ss 187 and 188 of the Industrial Relations Act 1996 (“the IR Act”) filed an Application for Leave to Appeal and Appeal from Commissioner Murphy’s decision. The plaintiff filed an Application for Leave to Cross-Appeal and Cross-Appeal pursuant to the same provisions of the IR Act on 12 May 2021. The plaintiff simultaneously filed a document titled “Notice of Contentions”.

9. On 24 May 2021, with leave granted on 20 May 2021, SafeWork filed an Amended Application for Leave to Appeal and Appeal.

10. The appeal and cross-appeal were heard by the Full Bench of the Industrial Relations Commission of New South Wales (“the Full Bench”) on 10 September 2021 and 29 November 2021.

The Appeal to the Full Bench

11. As noted at [8] above, SafeWork’s Application for Leave to Appeal and Appeal were filed pursuant to ss 187 and 188 of the IR Act. Those sections are to be found in Chapter 4, Part 7 of the IR Act, and gave SafeWork an entitlement to appeal against the decision of the single Commissioner – subject to leave being granted.

12. Section 191 of the IR Act provides that such an appeal “… is not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against”. However, s 191(2) of the IR Act gives the Full Bench of the Commission the ability to grant leave to “… receive further evidence …” in limited circumstances, namely, “… if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against …” was made.

13. As will become apparent, the Full Bench permitted evidence to be led before it, including oral evidence, by way of both evidence in chief and cross‑examination, although the legal basis of the ruling to permit additional evidence is somewhat elusive.

The Decision of the Full Bench

14. On 17 December 2021, the Full Bench gave its decision in relation to SafeWork’s appeal and the plaintiff’s cross-appeal in SafeWork NSW v Visscher (No 3); Visscher v SafeWork NSW (No 2) [2021] NSWIR Comm 1099 (“the Full Bench Decision”).

Jurisdictional Issue

15. The Full Bench first dealt with a challenge to its jurisdiction said to have been raised by the plaintiff in his cross-appeal. The plaintiff contended – for the first time in the proceedings before the Full Bench – that because he was not a “person conducting a business or undertaking” within the meaning of s 5 of the WHS Act at the time the Prohibition Notice was issued, the WHS Act did not bind him in any way, including insofar as the Full Bench had the power to hear and determine the appeal, because the proceedings in the Commission were null and void.

16. The Full Bench properly drew attention to the terms of s 195, which empowers SafeWork Inspectors to issue prohibition notices and, in turn, the definition of a “workplace”. The Full Bench considered the plaintiff’s submissions regarding the meaning of an “undertaking”, within the context of s 5 of the WHS Act.

17. In light of those considerations and on the basis of the evidence that was adduced, the Full Bench then determined, as a matter of mixed fact and law, that the construction of the plaintiff’s house was an “undertaking”, that the plaintiff’s property was a “workplace” and that, therefore, the Inspector had the power to issue the Prohibition Notice.

18. Notwithstanding those conclusions, the Full Bench acknowledged that the question as to whether the Prohibition Notice was properly issued was a question to be decided by a single Commissioner in the substantive hearing of the external review of the matter, which is yet to occur.

19. The Full Bench seems to have made the findings with respect to the Prohibition Notice on the basis that such findings of fact were necessary in order for the Commission (and therefore the Full Bench) to be seized of jurisdiction to hear the application for leave to appeal, the appeal (if leave be granted), and the cross-appeal. On that basis the Full Bench seems to have treated these as jurisdictional facts.

20. This analysis seemingly makes no reference to any of the statutory provisions in the WHS Act or the IR Act referred to above which provide an abundant source of jurisdiction in the Full Bench to hear and dispose of the matter before it.

21. A mistaken approach by a Court to the determination of whether it did or did not have jurisdiction would, if established, be capable of amounting to jurisdictional error. A different question arises as to what relief in its discretion this Court may grant.

The Appeal

22. The Full Bench granted leave to appeal on the basis that the question raised on the appeal, namely whether disclosures to SafeWork through their “Speak Up App” attract public interest immunity, was an important one.

23. The Full Bench held that public interest immunity may attach to documents that might disclose the identity of individuals who report safety concerns to SafeWork, including through the Speak Up App.

24. The Full Bench rejected the first ground raised by SafeWork on the appeal, namely that Commissioner Murphy failed to properly apply the relevant authorities regarding public interest immunity.

25. The Full Bench rejected the second ground raised by SafeWork in respect of Commissioner Murphy’s decision to require the removal of the redaction over part of the text of the Report on the basis that it was reasonably open to find as a matter of fact that that text did not tend to reveal the identity of the person who made the Report.

26. However, the Full Bench upheld the third ground in respect of Commissioner Murphy’s decision to require the removal of the redaction over a number of photographs. The Full Bench said it was not reasonably open on the evidence to find other than that the photographs indirectly revealed the identity of the person who made the Report.

The Cross-Appeal

27. The Full Bench granted leave to cross-appeal because SafeWork conceded that the first two grounds of the cross-appeal were concerned substantially with the same matters the subject of the appeal and that, on balance, that leave should be extended to the remainder of the cross-appeal.

28. The Full Bench rejected the first ground raised by the plaintiff that the redactions were somehow “unlawful”.

29. The Full Bench contended with, and rejected, the plaintiff’s broad and general assertions that it was necessary for him to know the identity of the person who made the Report. The Full Bench also rejected the proposition that the photographs were relevant and ought be produced in an unredacted form.

Orders

30. The Full Bench made the following orders:

“[141]   In respect of the Appeal:

(1)   leave to appeal is granted;

(2)   the Appeal is upheld in so far as it challenges the decision of Murphy C to order the production of the Photographs without redaction;

(3)   the decision of Murphy C to order the production of the Photographs without redaction is quashed; and

(4)   the Appeal is otherwise dismissed.

[142]   In respect of the Cross-Appeal:

(1)   leave to cross-appeal is granted; and

(2)   the Cross-Appeal is dismissed.

Supreme Court Proceedings

31. The plaintiff filed a Summons on 3 February 2022 seeking judicial review, pursuant to s 69 of the Supreme Court Act 1970, of the Full Bench Decision. The Summons is prolix.

32. The plaintiff essentially challenges, by assertions of jurisdictional error, the Full Bench’s decision:

1. regarding its jurisdiction to hear the appeal and, more fundamentally, the application of the WHS Act to the plaintiff;

2. that the photographs are subject to public interest immunity and need not be produced to the plaintiff; and

3. dismissing the cross-appeal and refusing to order the production of all documents in unredacted form.

33. SafeWork filed a Response to the plaintiff’s Summons on 23 February 2022. The plaintiff filed a Reply to that Response on the same day.

Notices of Motion

34. On 8 March 2022, the plaintiff filed a Notice of Motion seeking orders, pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 (“the UCPR”), for the decision of separate questions and for the referral of those questions to the Court of Appeal. The questions which were specified did not arise from, or in any way relate to, the judicial review proceedings commenced by the Summons and focussed wrongly on the conduct of SafeWork’s solicitor and Inspector which formed no part of the matters in issue. For the reasons which I gave orally on 6 July 2022, I dismissed the Notice of Motion: see Visscher v SafeWork NSW [2022] NSWSC 908.

35. On 15 March 2022, SafeWork filed two Notices of Motion seeking summary dismissal of the plaintiff’s Summons and, separately, his Notice of Motion filed on 8 March 2022. Both of SafeWork’s motions sought relief pursuant to r 13.4 of the UCPR.

36. All three Motions were listed for hearing on 6 July 2022. Having dismissed the plaintiff’s Motion, which was originally filed on 8 March 2022, SafeWork conceded that its Notice of Motion filed seeking orders summarily dismissing the plaintiff’s Motion ought be dismissed. I made that order.

37. The following reasons are published with respect to the decision which I made at the conclusion of the argument on WorkSafe’s remaining motion, namely, to dismiss that motion for summary dismissal of the entire Supreme Court proceedings.

Legal Principles

Summary Dismissal

38. In considering the remaining SafeWork motion, it is appropriate to commence with setting out the relevant legal principles applicable when orders under r 13.4(1) of the UCPR are sought.

39. Rule 13.4(1) of the UCPR provides:

“If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a)   the proceedings are frivolous or vexatious, or

(b)   no reasonable cause of action is disclosed, or

(c)   the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.”

40. In A v Dept of Communities and Justice [2021] NSWSC 937, I summarised the relevant legal principles with respect to summary dismissal, which it is convenient to reproduce here:

“[19]   Before a court can summarily dismiss a claim, the Court must be persuaded that the case for the dismissal is very clear.

[20]   The principles guiding the exercise of the Court’s power to order summary dismissal of proceedings are clear and of long-standing. The ordinary course of litigation ought generally be allowed to take place. That is because a litigant with a proper cause of action is entitled to expect that they will not be denied the opportunity, after taking advantage of the usual interlocutory processes, to put their case before the Court for judicial determination on the merits.

[21]   But this ordinary expectation is not unconstrained. The rules of Court permit proceedings to be summarily dismissed in appropriate circumstances. The rules exist to balance the litigant’s ordinary expectations on the one hand, with the right of the opposing party on the other hand, not to be vexed by litigation in which a proper cause of action cannot be reasonably identified, or if the proceedings are vexatious, oppressive, or an abuse of process.

[22]   In 2016, in Pi v Zhou [2016] NSWCA 24, Gleeson JA said at [9]:

‘It may be accepted that the power to order summary dismissal is one that should be exercised with great care and not unless it was clear that there is no real question to be tried. The test to be applied has been variously expressed, including: ‘So obviously untenable that it cannot possibly succeed’; and ‘manifestly groundless’, but the underlying point is that there must be a high degree of certainty about the ultimate outcome of the proceedings if it were allowed to go to trial or a hearing in the ordinary way: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552; Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46] ; Spencer v Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [24] –[25] (French CJ and Gummow J).’ ”

41. In considering whether to order summary dismissal, the Court needs to exercise caution, and to be satisfied that the certainty of the outcome of the litigation, rather than merely an assessment of prospects of success, has been demonstrated by the applicant: Perera v Genworth Financial Mortgage Insurance Pty Ltd (2017) 94 NSWLR 83; [2017] NSWCA 19 at [30].

42. I applied these principles in considering the disposition of SafeWork’s Notice of Motion.

Judicial Review in this Court

43. It is relevant also, at this stage, to consider the principles relevant in any application for judicial review under s 69 of the Supreme Court Act.

44. Notwithstanding the terms of s 179(1) of the IR Act, which provides that there can be no appeal from a judgment or order of the Full Bench of the Commission, s 69 of the Supreme Court Act preserves the power of the Supreme Court to judicially review decisions of the Commission but only on grounds that establish jurisdictional error: Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Secretary of the Treasury [2014] NSWCA 112 at [14]; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [26].

45. The proceedings in this Court fall to be determined by whether or not a claim that the Full Bench of the Industrial Relations Commission fell into a jurisdictional error. It has been recognised that it is not possible to attempt to mark “… the metes and bounds of jurisdictional error”: Kirk at [71] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

46. However, in Craig v South Australia (1995) 184 CLR 163 at 177; [1995] HCA 58, it was said that as a general description, jurisdictional error by an inferior court is established:

“… if it mistakenly asserts or denies the existence of jurisdiction 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”.

47. In Kirk at [72], the Court said of its earlier judgment in Craig:

“… the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court’s functions or powers by giving three examples:

(a)   the absence of a jurisdictional fact;

(b)   disregard of a matter that the relevant statute requires be taken into account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and

(c)   misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case.”

48. The Court in Craig at 178 went on to say that “… the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern”.

Discernment

49. The consideration of this application commenced by noting that the plaintiff is acting for himself, does not have any legal qualifications and, accordingly, is entitled to some latitude when considering the precision of the contents of the Summons and his submissions.

50. The second matter of contextual importance is that, as the authorities to which reference has been made with respect to jurisdictional error demonstrate, the categories, or bounds, of jurisdictional error are not settled, and it is often difficult to determine whether an error of one or another kind falls on one side or the other of a line which separates an error within jurisdiction and a jurisdictional error. There is no bright line between those two concepts applicable in all circumstances.

51. The third matter of context, which is important to keep in mind, is that these proceedings were commenced by the plaintiff by filing a Summons as opposed to pleading a cause of action in a Statement of Claim. No doubt, this is why SafeWork in its Notice of Motion did not seek any alternate relief pursuant to r 14.28 of the UCPR, which is a provision addressed to the content of pleadings as opposed to summary dismissal.

52. The Summons filed by the plaintiff raises grounds which address whether the Full Bench correctly determined the facts and failed to determine sufficient facts to ensure that it was acting within jurisdiction as the plaintiff asserted below when embarking upon hearing the application for leave to appeal and to appeal from the decision of the single Commissioner.

53. A reading of the transcript of the proceedings of the Full Bench of the Commission on 10 September 2021 makes plain that, at the commencement of the hearing of the application for leave to appeal and appeal, a member of the Full Bench raised with the parties what he described as a “highly unorthodox approach in dealing with [the] proceedings this morning …”. The Commissioner went on to identify that the contention by the plaintiff, that he was not as a matter of fact a person conducting a business or undertaking within the meaning of s 5 of the WHS Act, meant that a question arose which was described in the following terms:

“… as to whether that decision to issue [the plaintiff] with a prohibition notice was a reviewable decision within the meaning of s 223 of the Work Health and Safety Act, and whether as a consequence [the plaintiff was] entitled to invoke [the Full Bench’s] jurisdiction under s 229 of the Work Health and Safety Act …”

and, further in these terms:

“But the Full Bench has a concern that there is a more fundamental question that arises as to whether these proceedings are in fact a nullity, in that there was, if you are right on your primary contention, then this Commission has no jurisdiction arising under the Work Health and Safety Act at all.”

54. As a consequence of the Full Bench raising those questions which were described in that way, notwithstanding the opposition of SafeWork to those matters being explored factually, the Full Bench determined that it was its obligation to explore factually the question of whether the plaintiff was a person conducting a business or undertaking within the meaning of that phrase in the WHS Act, and whether the Inspector was empowered to issue the Prohibition Notice.

55. Those matters, including issues of fact, which the Full Bench determined, arguably, did not arise having regard to the nature of the application for leave to appeal.

56. The jurisdiction of the Full Bench was engaged by the provisions of ss 187 and 188 of the IR Act. In short, it appears those sections provide an arguable and sufficient basis upon which the Full Bench had the jurisdiction under the IR Act to hear and determine the application for leave to appeal and appeal against the interlocutory decision of a Commissioner whose jurisdiction was properly engaged by the application filed by the plaintiff.

57. In those circumstances, it would follow that the exercise of the determination by the Full Bench of the facts which it said gave rise to jurisdiction of the Commission generally, namely those facts of and surrounding the determination by the Inspector to issue the Prohibition Notice and his entitlement so to do (which it determined adversely to the plaintiff) was an exercise of its power upon which it had no entitlement to engage.

58. If that is so, then there has been, arguably, a jurisdictional error.

59. Given that SafeWork did not seek summary dismissal of part of the proceedings or separately of any individual ground, in those circumstances, since there was an arguable case for the determination of a part of the Summons, it was appropriate to dismiss the application for summary dismissal.

60. It needs to be emphasised that in expressing the view that these matters are arguable, this Court is not on this application reaching any conclusion whatsoever as to the correctness of the arguments. It is inappropriate, where there are complex questions of law, for this Court on an application of this kind (namely for summary dismissal of the proceedings) to engage in any final determination of the issues raised between the parties.

61. For example, it is an available argument that, notwithstanding what is arguably an error in the exercise of its jurisdiction, the orders actually made by the Full Bench were orders that fell within its appellate jurisdiction and were no more or less than a determination, correctly exercising its jurisdiction, of the power that it had.

62. It is inappropriate for this Court on this application to make any determination of these competing arguments.

63. It is for those reasons that I rejected the application for summary judgment.

Order

64. I make the following order:

1. Dismiss the Notice of Motion filed by the first defendant on 14 March 2022.

**********

Decision last updated: 27 September 2022