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

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

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.
On 14 December 2020, the plaintiff made an application to SafeWork, pursuant to s 224 of the WHS Act,…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2022] NSWSC 1253
Decision Date: 06 July 2022

CaseChat Overview and Summary

Visscher v SafeWork NSW (No 2) involved the applicant, Visscher, and SafeWork NSW, the respondent. The dispute centred on the jurisdiction of the Full Bench of the Industrial Relations Commission and whether it could hear and determine an application for leave to appeal and an appeal against an interlocutory decision of a single Commissioner. The case was heard in the Federal Court of Australia.

The central legal issue before the court was whether the Full Bench of the Industrial Relations Commission had the jurisdiction to hear and determine an application for leave to appeal and an appeal against an interlocutory decision of a single Commissioner. Furthermore, the court had to determine if making an unnecessary determination of facts adverse to a party could constitute a jurisdictional error.

The court found that the Full Bench of the Industrial Relations Commission did indeed possess the jurisdiction to hear and determine such applications. It was held that making an unnecessary determination of facts adverse to a party could constitute a jurisdictional error, which could lead to the dismissal of proceedings. The court dismissed the application, finding that there was an arguable case for the determination of the Summons. The court's reasoning was based on the interpretation of the relevant legislation and the established principles of judicial review. The court concluded that the Full Bench had the requisite jurisdiction, but the manner in which it exercised that jurisdiction was flawed, leading to the dismissal of the application.

Orders