Visscher v SafeWork NSW (No 3)

[2023] NSWSC 317

Supreme Court

New South Wales

Medium Neutral Citation:

Visscher v SafeWork NSW (No 3) [2023] NSWSC 317

Hearing dates:

21-22 March 2023

Date of orders:

31 March 2023

Decision date:

31 March 2023

Jurisdiction:

Common Law

Before:

Schmidt AJ

Decision:

The amended summons be dismissed and that Mr Visscher must bear SafeWork’s costs, as agreed or assessed.

Catchwords:

ADMINISTRATIVE LAW — judicial review — Supreme Court Act 1970 (NSW), s 69 — where plaintiff seeks judicial review of decision of Full Bench of Industrial Relations Commission of NSW — prohibition notice issued by SafeWork NSW inspector under Work Health and Safety Act 2011 (NSW) — owner/builder building own house — application for external review commenced before Industrial Relations Commission — Commission’s jurisdiction to consider claim of public interest immunity

STATUTORY INTERPRETATION — construction of Work Health and Safety Act 2011 (NSW) — whether plaintiff a “worker” — meaning of “undertaking” and “workplace”— whether building site a “workplace” — whether owner/builder conducting an “undertaking”

EVIDENCE — Privileges — public interest immunity — notice to produce — documents produced in redacted form — objection to disclosure of identity of person who drew safety risks investigated to attention of SafeWork NSW — whether Industrial Relations Commission fell into jurisdictional error by finding that public interest immunity attached to documents — no jurisdictional error — Industrial Relations Act 1996 (NSW)

Legislation Cited:

Crimes Act 1900 (NSW), s 314

Industrial Relations Act1996 (NSW), ss 146, 163, 164A, 179, 187, 188, 190, 191, 192

Law Enforcement (Controlled Operations) Act 1997 (NSW)

Occupational Health and Safety Act 1985 (Vic), s 22

Police Act 1990 (NSW), s 6

Supreme Court Act 1970 (NSW), s 69

Uniform Civil Procedure Rules 2005 (NSW), Pt 34, rr 13.4, 42.1

Work Health and Safety Act2011 (NSW), ss 3, 5, 7, 8, 160, 195, 223, 229

Work Health and Safety Regulation 2017 (NSW), Ch 6, regs 36, 225, 289, 292

Cases Cited:

Alister v The Queen (1984) 154 CLR 404

Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227; [2008] FCAFC 123

Certain Lloyd’s Underwriters Subscribing to Contract Number IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56

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

Crown Employees (Public Sector – Salaries 2008) Award (2008) 180 IR 149; [2008] NSWIRComm 142

Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43

George v Rockett (1990) 170 CLR 104; [1990] HCA 26

Growthbuilt Pty Ltd v SafeWork NSW (2018) 274 IR 317; [2018] NSWIRComm1002

Hussman Australia Pty Ltd v Walker (1993) 48 IR 396

In the matter of Prismex Technologies Pty Ltd; Colin Taggert v Matyear [2013] NSWSC 278

Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14

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

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

R v Young (1999) 46 NSWLR 681; [1999] NSWCCA 166

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

Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43

The Owners - Strata Plan No 73943 v Gazebo Penthouse Pty Ltd [2014] NSWSC 1536

The Queen v A2 (2019) 265 CLR 507; [2019] HCA 35

Visscher v SafeWork NSW [2022] NSWSC 908

Visscher v SafeWork NSW(No2) [2022] NSWSC 1253

Whittaker v Delmina Pty Ltd [1998] VSC 175

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

WorkCover Authority of NSW (Inspector Farrell) v Morrison [2001] NSWIRComm 325

WorkSafe New Zealand v Dong SH Auckland Ltd (2020) 17 NZLR 841; [2020] NZHC 3368

Texts Cited:

Macquarie Dictionary, online ed

Category:

Principal judgment

Parties:

Mr Timothy Visscher (Plaintiff)
SafeWork NSW (First Defendant)
Industrial Relations Commission of New South Wales (Second Defendant)

Representation:

Counsel:
Mr I Latham (First Defendant)
Mr I Visscher (Plaintiff self-represented)
Solicitors:
Department of Customer Service (First Defendant)
Crown Solicitor’s Office (Second Defendant)

File Number(s):

2022/31494

 Decision under appeal 

Court or tribunal:

Industrial Relations Commission of NSW

Citation:

[2021] NSWIRComm 1099

Date of Decision:

17 December 2021

Before:

Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster

File Number(s):

2021/123596 and 2021/136519

JUDGMENT

1. Mr Visscher brought these judicial review proceedings in February 2022, seeking orders quashing a decision of a Full Bench of the Industrial Relations Commission of New South Wales given in December 2021. The proceedings concerned a prohibition notice issued to Mr Visscher by a SafeWork inspector, Mr Fripp, under s 195 of the Work Health and Safety Act2011 (NSW): SafeWork NSW v Visscher (No 3); Visscher v SafeWork NSW (No 2) [2021] NSWIRComm 1099.

2. The notice was directed to work at a site at Catherine Hill Bay where Mr Visscher was building a substantial home as an owner/builder. It had required him to stop further work until he had taken steps to remedy deficiencies in scaffolding erected at the building site, to eliminate the risk of falls. The state of the scaffold had come to SafeWork’s attention as the result of a report made by an individual referred to in the proceedings as “the Requestor”, utilising a mobile reporting system it maintained, known as the “Speak Up Save Lives” app.

3. The information so provided included photographs which the inspector had seen before he visited the building site, in response to the report. It appears that it was as a result of what Mr Fripp there observed and discussed with Mr Visscher, who was present on site and their later communications, that the disputed notice was issued.

4. Before the Commission there was no issue that the inspector’s decision to issue the challenged notice was reviewable, Mr Visscher’s application for internal review of his decision having failed: ss 223 and 229 of the WHS Act. The cases which the parties advanced about a notice to produce which Mr Visscher had issued to SafeWork, raised an issue about whether there was any public interest immunity in the identity of the Requestor.

5. The Full Bench granted both parties leave to appeal an April 2021 unpublished ex tempore decision given by Murphy C about a motion Mr Visscher had brought in relation to SafeWork’s response to the notice to produce. Its case was that he was not entitled to have certain of those documents, which it had produced in redacted form, including the photographs, because they would disclose the identity of the Requestor.

6. Both the Commissioner and the Full Bench had access to the unredacted documents, which are also a confidential exhibit in these proceedings. While accepting SafeWork’s claim in part, Murphy C did not accept that all of the redactions it had made to the documents produced, including the photographs, were necessary. His orders were stayed pending determination of the appeal proceedings.

7. What was in issue before the Full Bench included:

1. jurisdictional questions raised by Mr Visscher which turned on matters of statutory construction, such as whether his building site was a “workplace” and he was a “person conducting a business or undertaking” under the WHS Act;

2. whether public interest immunity attached to the Requestor’s identity;

3. whether the balancing exercise required to be undertaken when such immunity exists had correctly been undertaken by the Commissioner; and

4. whether applicable requirements of the Uniform Civil Procedure Rules 2005 (NSW) had been complied with by SafeWork.

8. SafeWork’s appeal was dismissed by the Full Bench, other than in relation to the order which had required the production of the disputed photographs. Mr Visscher’s cross-appeal was dismissed.

9. While the documents which SafeWork was ordered to provide Mr Visscher have since been served, because of Mr Visscher’s pursuit of these proceedings the Commission’s external review of the December 2020 decision to issue the disputed prohibition notice has not proceeded.

10. In these proceedings the parties filed a number of motions, including one by Mr Visscher seeking to have the proceedings referred to the Court of Appeal. Another by SafeWork seeking orders under r 13.4 of the Uniform Civil Procedure Rules, summarily dismissing Mr Visscher’s summons. They were both dismissed by Garling J: Visscher v SafeWork NSW [2022] NSWSC 908 and Visscher v SafeWork NSW (No 2) [2022] NSWSC 1253.

11. Mr Visscher’s March 2023 amended summons seeks orders including:

1. that the Full Bench’s decision that it had jurisdiction to hear and determine the matter be quashed; that the disputed notice was void ab initio; that the Commission proceedings were a nullity; that he was not a person conducting a business or undertaking within the meaning of the WHS Act; and an order that the Full Bench determine the matter according to law;

2. that the decision in relation to the redaction of the photographs be quashed; that the documents produced were not protected by public interest immunity; and that the Commissioner of the New South Wales Police Force investigate alleged breaches of s 314 of the Crimes Act 1900 (NSW); and

3. that the dismissal of his cross-appeal be quashed and a declaration that the unredacted documents must be produced.

Conclusion

12. Curiously, if Mr Visscher’s claim that the Commission had no jurisdiction to hear the matters which arose in the proceedings he had initiated before it had succeeded, the Full Bench could have made no orders giving him access to the documents he sought to have produced to him in unredacted form.

13. For reasons which follow, I am satisfied that the Commission did have jurisdiction to deal with Mr Visscher’s review application, the public interest immunity claim and the appeal and cross-appeal. Further, that the orders which Mr Visscher now asks this Court to make must be refused.

Issues

14. Mr Visscher appeared, as he did in the Commission, unrepresented. It must be accepted that some of what he advanced in his written and oral submissions was difficult to understand, contradictory as it was.

15. But by a filed statement of issues in dispute, the parties had agreed that what was in issue was “whether any of the grounds, as pleaded in the Amended Summons filed by the Plaintiff on 1 March 2023, give rise to jurisdictional error”.

16. The parties discussed what truly remained in issue between them during the course of the hearing. In his submissions Mr Visscher abandoned grounds 7 and 9 of his summons, but the parties were not agreed that other matters which he pressed arose to be determined in these proceedings.

17. In the result Mr Visscher advanced his case by addressing the remaining grounds of his amended summons, to which SafeWork responded.

18. It emerged from the cases which the parties so advanced that what was really still in issue between them included:

1. whether various of the relief Mr Visscher still pressed was available in these judicial review proceedings;

2. the Full Bench’s jurisdiction, given the proper construction of the WHS Act and the matters raised by the appeal, cross-appeal and notice of contention, which fell to it to decide; and

3. the availability and correctness of the conclusions the Full Bench had reached about the public interest immunity claim and the production of the disputed documents it had ordered.

The relief available in judicial review proceedings brought under s 69 of the Supreme Court Act

19. The Commission is an administrative tribunal with statutory powers granted by the Industrial Relations Act1996 (NSW), the WHS Act and other legislation not here relevant. There was no issue that its decisions are reviewable by this Court under s 69 of the Supreme Court Act 1970 (NSW): 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].

20. But Mr Visscher could point to no statutory power given to the Commission which would enable it to order the Commissioner of Police to investigate the offence under s 314 of the Crimes Act, which he considers the Requestor has committed. This section makes it an offence to make “an accusation intending a person to be the subject of an investigation of an offence, knowing that other person to be innocent of the offence”.

The parties’ cases

21. Mr Visscher’s case was, however, that given this Court’s inherent jurisdiction, it had power, in the interests of justice, in these proceedings to order the Commissioner of Police to investigate the alleged s 314 offence, even if the Commission did not. Further, that it would exercise that power, given the evidence which established the wrongful complaint which had been made about him to SafeWork by the Requestor.

22. That was disputed.

23. SafeWork’s case was that even if such a power existed, it would not be exercised by the Court in this case, given the state of the scaffolding established by photographs in evidence. While it was accepted that in an appropriate case the Court could and does refer its judgments to the Commissioner of Police and other relevant authorities, that it had the power to order an investigation into an alleged offence under the Crimes Act was not.

The referral order may not be made

24. In resolving this and other issues lying between the parties, how these proceedings came before the Court must be borne in mind.

25. Section 179 of the Industrial Relations Act provides that a decision of the Commission is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal, subject to a right of appeal to this Court or the Court of Criminal Appeal, conferred by that or any other Act. There is no such right of appeal to this Court conferred in relation to the Full Bench’s decision.

26. Hence these judicial review proceedings are limited to jurisdictional error of the kind to which s 69 of the Supreme Court Act is directed. That requires consideration to be given to the matters which the Full Bench was called on to determine in relation to the cases which the parties advanced on their appeal and cross-appeal and Mr Visscher’s notice of contention. They did not raise the question of any offence committed under s 314 of the Crimes Act.

27. Nor does that otherwise arise for consideration in these proceedings, which are not a vehicle for Mr Visscher to:

1. raise new claims which were not before the Full Bench for determination on the appeal or cross-appeal;

2. seek to pursue matters which he there sought to advance which were not relevant to the matters that the Full Bench had before it to decide; or

3. pursue alleged errors of fact, about which he is dissatisfied.

28. Mr Visscher accepted the latter, withdrawing grounds 7 and 9 of his summons as a result. But it must also be accepted that under s 69 of the Supreme Court Act this Court cannot make any orders requiring the Commissioner of Police to investigate an alleged offence under s 314 of the Crimes Act.

29. Even if the Court otherwise had the discretion to make such an order as part of its inherent jurisdiction, which I do not accept, it is not one which I would exercise in this case. Nor do I consider it appropriate to refer this judgment to the Commissioner, as the Court sometimes does.

30. That is firstly because the merits of Mr Visscher’s review application are yet to be heard and determined by the Commission, which by the WHS Act is given the relevant authority to review the inspector’s decision. Secondly, because as a result of the Full Bench having, at the end of the first day of the hearing, permitted further evidence to be led as to the jurisdictional issue Mr Visscher had raised, there are other photographs in evidence, in addition to those provided to SafeWork by the Requestor. They show the state of the scaffolding, which is not such as to support the alleged commission of a s 314 offence.

31. In the result, an order requiring the Commissioner of Police to investigate an alleged offence under s 314 of the Crimes Act, cannot be made.

Ground 1 - The Full Bench’s alleged failure to exercise jurisdiction, by not asking a mandatory question and condition precedent for the invocation of power by an Inspector to give a Prohibition Notice pursuant to s 195 of the WHSAct, namely, did the Inspector reasonably believe the matters set out in s 195(1)(b)?

32. I am satisfied that this ground was not established.

33. Not only did this issue not arise for the Full Bench to determine, given what was before it to decide, but this ground misapprehends the effect of s 195.

The parties’ cases

34. Mr Visscher’s case depended in part on the construction which he advanced in relation to other provisions of the WHS Act, particularly that he was not involved in an “undertaking” to which the obligations imposed by the Act then attached and that his building site was not then a “workplace”. I will return to those issues.

35. Mr Visscher’s case was that if the Full Bench had asked itself the question posed by this ground in relation to the existence of a belief under s 195(1)(b), on the evidence it had received the question had to be answered “no”. That was because, he contended, there was no objective evidence that the inspector had made any reasonable enquiry about the use of the balcony or scaffold, which were isolated from personal access as the applicable regulations required, before he issued the notice.

36. This contention turned on an analysis of the evidence which Mr Visscher advanced, which in part depended on advice he claimed he had given the inspector, that there would be no others apart from himself on the site for at least six months. Mr Visscher also relied on reg 36, Hierarchy of Control Measures of the Work Health and Safety Regulation 2017 (NSW), which applies “if it is not reasonably practicable for a duty holder to eliminate risks to health and safety”.

37. The result was, on Mr Visscher’s approach, that the Full Bench should have concluded that the prohibition notice was void ab initio and the proceedings he had brought before the Commission were a nullity.

38. He also contended that the intention of the WHS Act was to make the existence of the inspector’s reasonable belief a jurisdictional fact: Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 at [43]. Mr Visscher also relied on authorities which had considered the s 195 concept of “reasonable belief”, including Growthbuilt Pty Ltd v SafeWork NSW (2018) 274 IR 317; [2018] NSWIRComm 1002.

39. There the former Chief Commissioner, Kite CC, had concluded that the s 195(1) reasonable belief test was objective and required the existence of facts “which are sufficient to induce that state of mind in a reasonable person” at [50], applying George v Rockett (1990) 170 CLR 104; [1990] HCA 26 at 112. While an inspector was not required to undertake a full investigation, there was a requirement to make reasonable inquiries to establish or clarify the facts. Further, a reasonable and balanced approach did not allow an inspector to make assumptions and act on them without, at least, attempting to test, in a timely and practical manner, the validity of those assumptions: at [55]-[57] and [95]-[96].

40. Mr Visscher also advanced detailed submissions about why the evidence did not permit the resulting required factual conclusions to be arrived at, which it is unnecessary here to explain.

41. SafeWork’s case was that this exercise was not undertaken, because what Mr Visscher now raised was not before the Full Bench, which was not called on to decide these matters. They rather arose to be decided on the hearing of his review application.

42. In any event, if a review of the evidence of the kind which Mr Visscher invited were to be undertaken, there was ample evidence of the existence of the inspector’s required reasonable belief.

The Full Bench did not err

43. It is unnecessary to undertake the analysis of the evidence which Mr Visscher’s case invited.

44. The proceedings in Gedeon were concerned with the lawfulness of certain controlled operations which had been conducted under the Law Enforcement (Controlled Operations) Act1997 (NSW), which depended on satisfaction about specified statutory criteria. The expression "jurisdictional fact", was there explained at [43], as being “used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.”

45. But it was concluded that the existence of the necessary satisfaction, without which the operations there in question would not be lawful, could be raised for determination by a ruling at trial: at [47].

46. It follows that Mr Visscher’s contention that in his case, it was necessary for the Full Bench to ask and answer the question of whether the inspector had the required reasonable belief which s 195 required, cannot be accepted. That is, however, a matter which he is entitled to pursue at the hearing of his review application.

47. It was Mr Visscher who bought the Commission proceedings, seeking external review of the disputed notice, the Commission having the power to “confirm, vary or revoke the decision concerned”: s 229(4) of the WHS Act. The exercise of that power was not before the Full Bench, however, the Commission at first instance not yet having heard or determined the parties’ cases on the matters raised for decision by Mr Visscher’s review application.

48. As Garling J observed in Visscher No 2 at [12], under s 191 of the Industrial Relations Act an appeal to a Full Bench of the Commission 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. What was in issue was confined by the matters which the parties had pursued before Murphy C and challenged on appeal.

49. There is power given the Full Bench by s 191(2) to grant leave to receive further evidence, in limited circumstances. Namely, if the Full Bench “considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against”.

50. No reasons were given for the leave which the Full Bench granted to lead further evidence, at the end of the first day of the hearing. But the transcript reveals that this course was pursued because of the jurisdictional question which Mr Visscher had raised. He had not relied on this before the Commissioner, understandably, given that it was he who had initiated the proceedings and was still pursuing production of the disputed documents.

51. But the course Mr Visscher so pursued did not alter the nature of the appeal proceedings before the Full Bench. It was not as a result of the grant of leave to lead further evidence entitled to embark on the hearing of the merits of his review application, which had not yet been decided at first instance. Its powers were specified in s 192 rather to be to:

(a) confirm, quash or vary the decision of the Commission concerned, or

(b) direct a member of the Commission to take further action under this Act to carry its decision on the appeal into effect, or

(c) refer the matter back to the member of the Commission, with such directions or recommendations as the Full Bench considers appropriate.

52. The Full Bench could also determine a part of the matter and refer the remainder back to the member of the Commission: s 192(1) of the Industrial Relations Act.

53. It was this constraint which no doubt led the Full Bench to observe in its decision that Mr Visscher had sought to challenge both the validity of the safety concerns reflected in and relied on by Mr Fripp, to issue the disputed notice and to impugn his motivations in issuing that notice. But it did not traverse or offer comment on those matters, because they were not germane to the issues which required its determination: at [36].

54. It also considered that whether Mr Fripp could reasonably have formed the belief required by s 195 was a matter to be determined at the substantive hearing of Mr Visscher’s external review application. That not being a matter which went to the Commission’s jurisdiction: at [72].

55. The Full Bench was correct.

56. Its approach reflected that there was no issue before the Full Bench that Mr Visscher was entitled to make an application to the Commission for review of the inspector’s decision to issue the notice, his application for internal review having failed. Or that the Industrial Relations Commission had jurisdiction to entertain Mr Visscher’s motion in relation to the production of the disputed documents.

57. It must be remembered that the WHS Act permits entry into workplaces and the issuing of certain notices, including s 195 prohibition notices: s 160. The information provided by the Requestor, which led to the inspection which resulted in the issue of the disputed notice included photographs. But the inspector himself saw the state of the scaffolding which Mr Visscher had erected, which is depicted in other photographs in evidence.

58. On his own case, Mr Visscher was onsite when the inspector came to the building site. On the case he advanced in this Court, he had relevant qualifications in scaffolding; he had erected the scaffolding; despite recent attendance at the site by an engineer and certifier, no one other than he had performed any work on site for over 500 days; he would be working on site by himself for at least a further six months; and he was on the balcony on the day the inspector attended, even though the inspector had not seen him there.

59. It follows that on his own case Mr Visscher was on the balcony where the scaffold which the inspector saw, led him to consider that it posed an unacceptable risk to safety, in his view not protecting, as it needed to, a person from a fall from height.

60. The regulation on which Mr Visscher relied in advancing this ground applied to the scaffold only in the event that it was not reasonably practicable for any risk which it posed to be eliminated. That this was not practicable was not suggested. Even if such risk could not be eliminated, the regulation required that it be minimised, by implementing risk control measures, so far as was reasonably practicable, by doing one or more of the things specified in reg 36(3):

(a) substituting (wholly or partly) the hazard giving rise to the risk with something that gives rise to a lesser risk,

(b) isolating the hazard from any person exposed to it,

(c) implementing engineering controls.

61. In his arguments Mr Visscher relied on steps he had taken to preclude access to the site and thus the scaffold by others, to contend that he had complied with the regulation. This did not arise to be determined either before the Full Bench or this Court, although the matters he relied on could undoubtedly be advanced on his review application.

62. But it should be observed that Mr Visscher’s approach paid no attention either to reg 36 only applying if it was not reasonably practical to eliminate the risks which the scaffold presented, or that it was concerned with exposure of “any person” to the hazard it posed, not only “workers”. That included Mr Visscher when he was on site, as he was on the day of the inspection, when he was on the balcony.

63. Likewise, s 195(1) of the WHS Act is also not confined to risks posed to “workers”. It rather provides:

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.

64. It also follows from the structure of s 195(1) that, contrary to Mr Visscher’s case, the inspector’s exercise of the s 195(1) power did not depend on satisfaction of the matters specified in s 195(1)(b). It could have rested on either or both paragraphs. Whether the inspector had an objective basis for his belief is a question of fact which did not arise for determination either before the Full Bench or in these proceedings. But given the relief which Mr Visscher pressed, it should be observed that photographs in evidence would support the conclusion that the inspector did.

65. The notice which the inspector issued must be borne in mind. It specified:

“I, Warren Fripp reasonably believe on 7/12/2020 at 2:46:55PM that an activity may occur at the workplace that will involve a serious risk to the health or safety of a person emanating from an imminent exposure to a hazard and that this activity is likely to contravene, a provision of the Work Health and Safety Act 2011, section 19 and Work Health and Safety Regulation 2017, clause 78.

I direct the person with control over the following activity of: Working on Scaffolding or upper level balcony to stop the carrying on of the activity until an inspector is satisfied that the following matters that will give rise to the risk have been remedied:

…

Workers/Other persons may be exposed to a serious risk to their health or safety as there is no system in place to prevent a person falling approximately 3-4 metres from the upper level or scaffolding to the ground of a residential house under construction.

…

1. You must eliminate the risk of falls from the scaffolding, where this is not reasonably practicable you must minimise the risk of falls so far as is reasonably practicable by providing a safe system of work which complies with clause 79 of the Work Health and Safety Regulation 2017.

2. You must ensure scaffolding erected on site, is installed by a competent person and in accordance with the manufacturers recommendations.

Or

Dismantle scaffolding onsite by a competent person.

3. When this direction has been completed contact the Inspector who issued this notice who will determine compliance.

…

In complying with the direction, you may give consideration to further guidance available from:

- SafeWork NSW codes of practice 'Managing the risk of falls at workplaces', 'Preventing falls in housing construction', 'Construction work'”.

66. Curiously, in this Court Mr Visscher finally claimed that the proceedings he had brought in the Commission to challenge this notice are a nullity. If that were correct, the Commission would of course have had no power to order that he be given access to the disputed documents, access which he still pursues in these proceedings. That the Commission proceedings are a nullity was not, however, established by anything that Mr Visscher advanced.

67. If Mr Visscher no longer wishes to pursue the review application which he brought in the Commission he is, of course, entitled to withdraw it. But that is a course which he has not pursued.

68. In the result, however, this ground cannot succeed.

Ground 2 - The Inspector acted in bad faith, for an improper purpose and the Full Bench denied Mr Visscher procedural fairness in not allowing him to pursue a line of questioning regarding the Inspector’s intention to prosecute him, if he breached the notice

69. By the case which he advanced, Mr Visscher pursued the question of whether the scaffolding was non-compliant with reg 225 of the WHS Regulation, to which the inspector had not referred in the notice. What he challenged included the inspector’s inspection report, which described the state of the scaffolding on site, as well as places he then observed, where he considered that a person could fall three to four metres to the ground from the scaffold.

70. Mr Visscher also challenged the credibility of the inspector’s evidence, but as the Commission correctly observed, that did not go to its jurisdiction on the appeal: at [48]-[49].

71. I am also satisfied that this ground was not established, given the matters which I have already discussed and what follows.

The parties’ cases

72. Mr Visscher also advanced this ground by reference to the evidence, including his cross-examination of Mr Fripp. Particularly:

“Q. Mr Fripp, I put it to you that just prior to you leaving my premises on 7 December 2020 you said to me to the effect that after you had gone you would not be concerned if I went on to the scaffolding to complete the work of cleaning up the adhesive, the work that I had told you of earlier, the last job I needed to do from the scaffolding, what would you say to that?

A. In essence of our conversation, I think I had been there for an hour already talking to you. What you do when I leave the property is up to you, you're an adult, I've told you not to get on the scaffolding, and to be honest, it's your decision. If you want to do it when I leave, that's fine, you go and do what you want, I'm leaving the site.

Q. Thank you. Now, Mr Fripp, after you had left my premises on 7 December, and if I had used the scaffolding in breach of your prohibition notice, and you could prove that breach, you would have taken steps to have me prosecuted; is that correct?

A. Sorry, say that part again?

Q. After you left my premises on 7 December 2020.

A. Yep.

Q. And if I had used the scaffolding in breach of the prohibition notice, and you could prove that breach, you would have taken steps to have me prosecuted; is that correct?

A. From memory, I don't remember verbally saying that to you unless it's within an email from - after our conversation of me telling you that you shouldn't use it, but from memory I don't remember saying that to you.

Q. No, I'm not saying that you said it to me, Mr Fripp; I'm saying to you - I'll repeat the question. If after you had left my premises on 7 December 2020 and if I had used the scaffolding in breach of your prohibition notice, and you could prove that breach, you would have taken steps to have me prosecuted; is that correct?

LATHAM: Chief Commissioner, how is this relevant?

APPLICANT: Well, got one more question, your Honour.

CONSTANT CC: You've withdrawn that question, Mr Visscher; thank you.

APPLICANT: I'm saying can I continue with the question, your Honour?

SLOAN C: No, the objection is sustained, Mr Visscher.

APPLICANT: Thank your Honour. I have no further questions.”

73. SafeWork’s case was that what Mr Visscher so sought to pursue was not raised by any of the matters over which the parties joined issue before the Full Bench and there had thus been no denial of procedural fairness in rejecting his irrelevant question.

This ground is also not made out

74. At the end of the first day of the hearing, the question of the Commission’s jurisdiction to hear Mr Visscher’s review application, given his contention that the WHS Act did not apply to his building work at the time the notice was issued, having been raised as it was, a direction was made that parties file and serve further evidence and submissions going to the question of jurisdiction.

75. But the evidence led at the resumed hearing had to be relevant to the matters arising on the appeal, cross-appeal and notice of contention.

76. The amended application for leave to appeal and appeal raised matters going to the disputed public interest in maintaining the confidentiality of persons who report potential contraventions of health and safety laws to SafeWork; whether certain findings of fact had been open on the evidence; whether applicable authorities had correctly been applied, given the issue about the protection of the identity of the Requestor; and whether the orders Murphy C had made were capable of disclosing his or her identity. Orders setting aside those made by Murphy C about the production of the disputed documents were sought, as well as a stay.

77. The application for leave to appeal and cross-appeal raised matters going to whether Pt 34 of the Uniform Civil Procedure Rules had been correctly applied; whether the Commissioner was right in granting only limited access to the documents produced; whether Mr Visscher was a “person conducting a business or undertaking” within the meaning of s 5 of the WHS Act; and whether he was bound by its provisions.

78. Mr Visscher’s notice of contention raised the doctrine of public interest immunity, said to be “substantive (common) law”, a “legal right and a fundamental common law privilege”. He claimed that the categories of documents withheld because they could disclose the identity of an informer of possible infringements of work health and safety laws to a regulator was not recognised by law within that doctrine and that there was no evidence capable of supporting the creation of such a new category or class of immunity. He also claimed that the Commission, creating new law by recognising such immunity, would exceed its jurisdiction.

79. What was not raised was that the inspector had acted in bad faith or for an improper purpose. It followed that while that could of course be pursued by Mr Visscher on the case he advances on the hearing of the review application, nothing had yet been decided about such questions, which were thus not before the Full Bench, as it observed at [72].

80. The conduct of Commission proceedings is governed by s 163 of the Industrial Relations Act. It provides that the Commission is not bound to act in a formal manner, is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just. It is also required “to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”: s 163(c).

81. The right to appeal Murphy C’s decision was given to the parties by s 187 of the Industrial Relations Act. Section 188 provides that such an appeal lies only with the leave of a Full Bench of the Commission, which it granted. The power to order a stay of the Commissioner’s decision was given by s 190, which was exercised. The hearing of the appeal was regulated by s 192, earlier explained.

82. What was raised by the appeal, cross-appeal and contentions concerned the proper construction of the WHS Act, Mr Visscher contending that the s 195 notice could not have been issued to him, given the requirements of the statutory scheme. What was in issue included whether his building site was a “workplace” and his building project was an “undertaking”.

83. In all these circumstances there was no denial of procedural fairness in the Full Bench upholding the objection about which Mr Visscher now complains. Whether he might have been prosecuted if he had not complied with the disputed notice, an obvious risk given the statutory scheme, was not relevant to what the Full Bench had to decide.

Ground 4 - The Full Bench fell into jurisdictional error by irrational or illogical reasoning in its finding of jurisdictional fact that the building site was a “workplace” within the meaning of s 8 of the Work Health and Safety Act

Ground 5 - The Full Bench fell into jurisdictional error by irrational or illogical reasoning in its finding of jurisdictional fact that the “undertaking” was the construction project itself

84. It is convenient to deal with these grounds together, given the operation of the statutory scheme which they each raise.

85. “Workplace” is defined in s 8(1) of the WHS Act to mean “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”. There was no issue that work had been undertaken on the site, including by Mr Visscher, the owner/builder.

86. Section 5 deals with the meaning of the term “person conducting a business or undertaking”. It relevantly provides:

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.

…

(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.

…

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.

87. Mr Visscher accepted that he was conducting an undertaking at times when he engaged certain others to work on his building project. But on his case at other times, including when he was himself working on site, he was not conducting any undertaking and the site was not a workplace.

88. The Full Bench noted that before it:

1. Mr Visscher’s case that “he could only be regarded as conducting an undertaking when there was on site a worker with whom he had a commercial or contractual relationship, and over whom he had management or supervisory responsibility over them. As a consequence, Mr Visscher described himself as having been involved in a series of undertakings: during the period 10 November 2017 to 4 April 2018 when contractors he had engaged were regularly on site, and on 6 June 2018 and 13 May 2019 when contractors he had engaged performed core filling. He did not accept that the attendance on site of the engineer or the building certifier fell into this category as he ‘had no control over them…they decide when they’re going to come’”: at [39].

2. There having been “574 days since he had last engaged a contractor at the site. He disputed that as at that date there was a legitimate basis for Mr Fripp to determine that he was a PCBU and, having made that determination, issue him with the Prohibition Notice”: at [40].

The parties’ cases

89. Mr Visscher contended that the Full Bench had correctly concluded that he did not fall within s 7(1) of the definition of “worker” under the WHS Act, even though he did perform work on the site. The result was that it followed that he was not conducting either a business or undertaking at the time the disputed notice was issued. Essentially, business and undertaking meant the same thing, given that the word “or” was used conjunctively, not disjunctively, as the Full Bench held.

90. He also contended that the work he was then doing himself was not for a purported “construction project” and that his site was not then a workplace within the meaning of s 8 of the WHS Act.

91. Further, that Mr Fripp’s evidence did not establish that he was engaged in a construction project with which Ch 6 of the WHS Regulations was concerned, given the provisions of regs 289 and 292, contrary to the Full Bench’s conclusion that his undertaking was the construction work itself: at [70].

92. SafeWork contended that even though Mr Visscher did fall within the statutory definition of “worker”, contrary to the Full Bench’s view, it had arrived at the correct conclusions as to the operation of the statutory scheme. Further, that at the time the disputed notice was issued, he was conducting an undertaking and his building site was a workplace, where work was then being undertaken.

The Full Bench’s decision

93. Having explained the evidence, the Full Bench concluded that the case Mr Visscher advanced could not be accepted, given the proper construction of s 195 of the WHS Act and the meaning of the undefined word “undertaking”.

94. The Full Bench considered that Mr Visscher’s focus on the definition of a “person conducting a business or undertaking” in s 5 of the WHS Act misapprehended the requirements of s 195, which does not require that the recipient of a prohibition notice be a “person conducting a business or undertaking” at [46].

95. It also considered that in determining whether at the time the notice was issued the building site was a workplace, the meaning of the word “undertaking” had to be construed: at [50].

96. The Full Bench explained the principles of statutory construction which it was bound to apply, about which the parties took no issue: at [51]-[53], referring to Certain Lloyd’s Underwriters Subscribing to Contract Number IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 at [23]-[25]; Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14 at [57] and The Queen v A2 (2019) 265 CLR 507; [2019] HCA 35 at [33]-[35]. It also referred to the statutory objects, which had to be taken into account, which appear in s 3 of the WHS Act and include:

(a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and

…

(d) promoting the provision of advice, information, education and training in relation to work health and safety, and

(e) securing compliance with this Act through effective and appropriate compliance and enforcement measures, and

(f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act, and

(g) providing a framework for continuous improvement and progressively higher standards of work health and safety, and

…

97. The Full Bench concluded that this argued “against a narrow construction” of the meaning of “undertaking”, relying on the approach of Downs J of the High Court of New Zealand in WorkSafe New Zealand v Dong SH Auckland Ltd [2020] NZHC 3368 at [28], in relation to its analogous statutory scheme, on which Mr Visscher relied: at [55].

98. The Full Bench thus rejected Mr Visscher’s case that “business” and “undertaking” were “the same thing by a different name" and that “[i]n context, the essence of an ‘undertaking’ is that it is analogous to a ‘business’, whilst not necessarily being one. That is to say, an ‘undertaking’ is really a ‘claytons business’, the business you’re conducting when you’re not conducting a business”: at [56]-[57].

99. The Full Bench observed that its view accorded with that taken by Hansen J in Whittaker v Delmina Pty Ltd [1998] VSC 175, where the meaning of the also undefined word “undertaking” used in s 22 of the now repealed Occupational Health and Safety Act 1985 (Vic) was considered. Hanson J had there observed at [47] that “such a broad expression has been used deliberately to ensure that the section is effective to impose the duty it states”.

100. The Full Bench also noted that in WorkCover Authority of NSW (Inspector Farrell) v Morrison [2001] NSWIRComm 325, it had been determined that a self-employed pool builder who had been engaged to construct a pool in connection with the building of a house, was conducting an undertaking at the time of the relevant incident. That was also at a time when the pool had not been completed.

101. The Full Bench considered that it followed that the distinction that Mr Visscher attempted to draw between the contractors he engaged and other visitors to the site, such as engineers and building certifiers, was misguided. Further, to construe the legislation so as to regard his “construction project as an undertaking, and by extension a workplace, only when workers who have been contracted by Mr Visscher and over whom he exercises management or supervisory responsibility are engaged on the project would undermine the object of the WHS Act”: at [69].

102. The Full Bench referred to Mr Visscher’s chronology of those who had attended his building site and concluded at [70]-[71] that in Mr Visscher’s circumstances the “undertaking” was the construction project itself. Further that:

1. work was carried out for that undertaking continuously from 10 November 2017;

2. after 5 April 2018 the work was conducted predominantly by Mr Visscher himself;

3. during that period others performed work on the site, albeit sporadically;

4. in the result, as at 7 January 2020 Mr Visscher’s site was properly to be regarded as a “workplace” within the meaning of s 8 of the WHS Act; and

5. it was thus within Mr Fripp’s power to issue the Prohibition Notice pursuant to s 195 of the WHS Act.

103. It should be noted that the reference to the site visit in January 2020 was incorrect. That occurred in December. But the Full Bench did conclude on the evidence that when the prohibition notice was issued in December 2020, the site was a “workplace” within s 8 of the WHS Act and the inspector had power under s 195 to issue the prohibition notice, if he arrived at the statutory opinion: at [71]-[72].

104. It was also held that the matters Mr Visscher raised, about whether that belief was reasonable, did not go to the Commission’s jurisdiction and that it did have jurisdiction to hear and determine the matters raised by the appeal and cross-appeal. Mr Visscher’s contentions to the contrary were dismissed: at [73].

The construction for which Mr Visscher contends cannot be accepted

105. I am satisfied that Mr Visscher’s approach to the construction of the disputed words in the WHS Act is illogical and does not reflect the statutory scheme and so may not be accepted.

106. Their construction must be approached in light of the objects specified in s 3 of the WHS Act. They include the important purpose not only of protecting workers, but also other persons, against harm to their health, safety and welfare through the elimination or minimisation of risks which arise from work, or from specified substances and plant.

107. “Undertaking” and “work” are not defined in the WHS Act and so take their ordinary meanings. The parties agreed with the approach of Hamill J in The Owners - Strata Plan No 73943 v Gazebo Penthouse Pty Ltd [2014] NSWSC 1536 to the applicable authorities. Namely, that misunderstanding the legal meaning of a statute involves error and that determining its meaning, including of the ordinary meaning of the words used, is a question of law: at [63]. I agree.

108. “Undertaking” is defined in the Macquarie Dictionary, online ed, relevantly to mean “the act of someone who undertakes any task or responsibility”; (2) “a task, enterprise, etc., undertaken”; or (3) “a promise; pledge; guarantee”.

109. There was no issue that this word is wide enough to capture Mr Visscher’s building activities, he properly accepting that at times, when he engaged others to work on site as the owner/builder, he was conducting an undertaking. There was also no issue that he also himself worked on his project.

110. “Work” is defined in the Macquarie Dictionary, online ed, to include:

“1. exertion directed to produce or accomplish something; labour; toil.

2. that on which exertion or labour is expended; something to be made or done; a task or undertaking.

3. productive or operative activity.

4. manner or quality of working.

…

6. employment; a job, especially that by which one earns a living.

7. materials, things, etc., on which one is working, or is to work.

8. the result of exertion, labour, or activity; a deed or performance.

9. a product of exertion, labour, or activity: a work of art; literary works.

10. an engineering structure, as a building, bridge, dock, or the like.

11.(usually plural) a building, wall, trench, or the like, constructed or made as a means of fortification.

12.(plural often construed as singular) a place or establishment for carrying on some form of labour or industry: iron works.”

111. Mr Visscher had provided a chronology to which the Full Bench referred in its decision, as to times when he had engaged contractors and others to carry out various work on the building site: at [37]. For example, to have the site excavated, a driveway installed, concrete blocks laid, electricity connected, various materials delivered there and when engineers and certifiers were on site.

112. Mr Visscher thus accepted that at times his building site was a place where work was carried out. But on his case, not at the time that the prohibition notice was issued, even though he was himself then still performing work on the project. On his case, whenever it was he alone who was working on site, he was not engaged in any undertaking, relying on the view taken by the Full Bench that he was not a “worker”: at [30].

113. But this question had not been debated by the parties, with the Full Bench merely observing that “The term ‘worker’ is defined in s 7(1) of the WHS Act as a person who ‘carries out work in any capacity for a person conducting a business or undertaking’. In the circumstances of this case, Mr Visscher does not fall within this definition”. That approach did not have necessary regard to the effect of s 7(3).

114. On the evidence and the case Mr Visscher himself advanced, he undertook work at the site as the owner/builder, even at the time of the inspection and also planned to do so afterwards. No doubt there was other work involved in the project, which he necessarily undertook elsewhere. For example, if he went somewhere to order supplies.

115. Contrary to the view taken by the Full Bench, such work brought him within the statutory definition of a “worker”. That is because that word is not only defined in s 7(1) of the WHS Act to include persons such as employees, contractors and subcontractors, apprentices, trainees and volunteers. Section 7 also provides that “[t]he 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”: s 7(3) of the WHS Act.

116. Mr Visscher was such a person and he thus fell within this aspect of the definition of “worker”.

117. There is nothing in the statutory scheme which would permit the conclusion which Mr Visscher urged. Namely, that at times when he did not engage others to perform work on site, he was not conducting an undertaking, not even when he was working there himself. That is both quite illogical and contrary to the scheme and its objects.

118. As the Full Bench observed, whether or not someone is conducting an undertaking is a question of fact. A dispute over such a matter must be resolved logically, in light of all the evidence. Thus if the evidence established that at the time a notice was issued the owner/builder had sold the property, without the building being completed, it is difficult to see that it could be concluded that the required undertaking was still being pursued by the owner/builder.

119. But in this case, there was no issue that Mr Visscher was still building; that not only had a certifier and an engineer recently been onsite, he was also still working there. The evidence also addressed work he still intended to perform there. There was no suggestion that Mr Visscher had not engaged the certifier or the engineer, who also no doubt performed work when they attended the site. That he could not direct them in the performance of their particular tasks, could not mean that they were not performing work, were not workers, or that the building site was not then a workplace.

120. It was s 195 of the WHS Act which empowered the inspector to issue the disputed notice, if he formed one or other or both of the specified beliefs, on a reasonable basis. That is, that at the workplace which the building site comprised, there was or may be an activity occurring “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”.

121. There was correctly no issue that a fall from height which a scaffold was incapable of preventing, because of the way in which it had been erected, could amount to such a hazard. The activity specified in the notice was “Working on Scaffolding or upper level balcony”. On his own case Mr Visscher was working on that balcony when the inspector attended. Contrary to his case the Full Bench was correct in its conclusion that the Commission had jurisdiction. Section 195 was concerned with Mr Visscher’s exposure to that hazard, as well as that of others who might work on his building site from time to time.

The WHS Regulations

122. The WHS Regulations on which Mr Visscher relied also do not establish that the Full Bench fell into any jurisdictional error.

123. Regulation 289(1) provides that “In this Chapter, construction work means any work carried out in connection with the construction, alteration, conversion, fitting-out, commissioning, renovation, repair, maintenance, refurbishment, demolition, decommissioning or dismantling of a structure”.

124. Regulation 292 provides that “In this Chapter, a construction project is a project that involves construction work where the cost of the construction work is $250,000 or more”.

125. Still it does not follow that when the Full Bench referred to the “construction work” which Mr Visscher was pursuing, it was using that term in the sense defined in reg 292, as he contended.

126. In any event, construction work which involves a cost of less than $250,000 could unquestionably still be pursued as a part of a business or undertaking, thus attracting the provisions of the WHS Act which I have discussed.

Conclusion

127. It follows that it must be accepted that the Commission did have jurisdiction to entertain both Mr Visscher’s review application and the appeal and cross-appeal.

128. The Full Bench was thus empowered to grant the parties the leave to appeal which they required and to hear and determine the matters which they pursued on their appeal and cross-appeal. It did not fall into the jurisdictional error advanced by these grounds.

Ground 6 - The Full Bench fell into jurisdictional error by exercising judicial power it did not have by finding that public interest immunity attached to safety concerns reported to SafeWork

Ground 8 - The Full Bench failed to exercise jurisdiction by mistaking the nature of the documents as being amenable to a claim of privilege

129. The line between jurisdictional error and mere error in the exercise of jurisdiction can be difficult to discern: Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 at 177.

130. In Visscher (No 2) Garling J pointed to the possibility that the Full Bench fell into jurisdictional error in permitting further evidence to be led on the appeal, its jurisdiction having been engaged by ss 187 and 188 of the Industrial Relations Act: at [56]. His Honour considered that “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”.

131. His Honour thus took the view that the Full Bench may have fallen into jurisdictional error in exploring, factually, the question of whether Mr Visscher 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: at [58].

132. But jurisdictional error of that kind was not pursued at the final hearing.

133. Given what the parties did put in issue before the Full Bench in relation to the disputed notice to produce, contrary to Mr Visscher’s case, I am satisfied that it was empowered to determine the question of whether the claimed public interest immunity attached to the documents in issue. Indeed, Mr Visscher had himself raised this issue by his notice of contention.

134. In resolving that question the Full Bench was not impermissibly purporting to exercise judicial power. The issue having arisen as it did in the proceedings Mr Visscher had brought in the Commission, exercising rights he was given by the WHS Act and then issuing a notice in accordance with the Rules, requiring the production of documents which SafeWork contended he was not entitled to have, necessitated that the Commission resolve the question of whether the claimed immunity applied to the identity of the Requestor, when Mr Visscher pursued his motion.

135. As the Full Bench observed in its reasons for the grant of leave to appeal, in the context of the WHS Act, that was an important question, given the statutory objectives. They pertinently include eliminating or minimising risks arising from work or specified types of substances or plant and securing compliance with the Act through effective and appropriate compliance and enforcement measures: s 3(1).

129. Further, that required regard be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant, as is reasonably practicable: s 3(2) of the WHS Act.

The parties’ cases

137. Mr Visscher’s case was that the claimed immunity could not attach to documents which constitute the commission of a crime. Further, even if the Requestor had been a police informant, the common law protection would have given way to an offence under s 314 of the Crimes Act.

138. Mr Visscher also contended that had a police informer raised the safety concerns the Requestor had drawn to the attention of the police, under s 6 of the Police Act 1990 (NSW), he would have been interviewed. The result would have been that the Requestor would have been charged with making a false accusation and his or her identity would thus not have been suppressed.

139. Mr Visscher also argued that it was beyond the Commission’s jurisdiction to determine his legal rights and obligations, enabling the doctrines of res judicata issue estoppel/Anshun estoppel. Further, that whether the public interest immunity claimed existed was a question of law and thus amenable to review in these proceedings, despite the Commission’s lack of power to determine that question.

140. He also contended that SafeWork had made no claim of privilege in any of the disputed documents and the Full Bench had mistaken the nature of the documents then claimed to be amenable to a claim of privilege, with the result that it had failed properly to consider the grounds of appeal he had advanced at H of his application for leave to appeal and appeal from the decision of Murphy C and as a result, had failed to exercise jurisdiction. Those grounds were that:

“(a) The Commission erred by failing to properly apply the relevant authorities when considering whether the documents could directly or circumstantially disclose the identity of the requestor; and

(b) The Commission made a significant factual finding not reasonably open on the evidence, in particular that the documents were not capable of directly or circumstantially disclosing the identity of the requestor.”

141. SafeWork’s case was that the Commission had the power to determine the immunity claim it had pursued and had correctly undertaken the balancing exercise which was required, in the circumstances before it.

The Full Bench’s decision.

142. The Full Bench referred to these grounds of appeal at [75] of its decision. It observed that rejecting a claim of public interest immunity did not involve a discretionary decision, applying Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227; [2008] FACFC 123 at [21]: at [80]. It also observed that the conclusions Murphy C had reached rested on findings of fact with which the Full Bench would not interfere, “unless it is of the opinion that they were not reasonably open on the evidence”: Hussman Australia Pty Ltd v Walker (1993) 48 IR 396 at 406: at [83].

143. In considering the question of leave to appeal, the Full Bench explained the parties’ cases on the immunity issue, which led it to conclude that leave to appeal should be granted.

144. Mr Visscher’s case was that he knew the identity of the Requestor, which he considered had the result that the immunity could not arise. The Full Bench concluded, however, that “[t]he Commission cannot permit itself to be led into potentially defeating a claim of public interest immunity by making findings as to whether a party’s speculation as to the identity of an informer is correct”: at [87].

145. Having considered the applicable principles, the Commission accepted that, contrary to Murphy C’s conclusions, such privilege did attach to the disputed photographs.

146. After referring to the “classic formulation of public interest immunity”: in the judgment of Gibbs ACJ, as his Honour then was, in Sankey v Whitlam (1978) 142 CLR 1; [1978] HCA 43 at 38-39, the Full Bench observed that documents which would identify police informers has long been recognised as a class of documents which attracts public interest immunity: R v Young (1999) 46 NSWLR 681; [1999] NSWCCA 166 at [130]. That the rationale “is that unless the names of informers are protected, sources of information would dry up, thus hindering the police in the detection and prevention of crime”: at [132].

147. The Full Bench noted that such immunity has been held to extend to other informants, such as those who provide information to bodies such as the Gaming Board, the National Society for the Prevention of Cruelty to Children, the Australian Securities and Investments Commission; the New South Wales Bar Council; and the Legal Services Commission of South Australia: at [99].

148. It also accepted that it was not necessary that the documents over which immunity is sought would positively identify the informer: applying ASIC v P Dawson Nominees at [41]: at [100].

149. The Full Bench concluded, by analogy with the protection afforded to police informers, that “public interest immunity may attach to documents that might disclose the identity of individuals who report safety concerns to SafeWork NSW, including through the Speak Up App”: at [101]. It then turned to consider whether that “privilege” ought to result in the non-disclosure of some or all of the contents of the disputed documents by application of the three-step approach described in Alister v The Queen (1984) 154 CLR 404 at 142.

150. It then turned to consider the disputed documents. SafeWork had redacted the documents it produced in answer to Mr Visscher’s notice to produce, in order to advance its claim that he was not entitled to have the documents produced, because that would impermissibly disclose the Requestor’s identity.

151. The Full Bench concluded that the Commissioner had considered SafeWork’s claim of public interest immunity; had comprehended the nature of that claim; had accepted that the disputed documents were amenable to the claim made; and, had conducted the necessary balancing exercise, “namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates” applying Alister at 412: at [109].

152. The Full Bench then turned to consider whether the Commissioner had erred in his factual findings about the disputed documents, noting that he also had the unredacted documents to consider: at [114].

153. It concluded that that the Commissioner’s factual finding in respect of two documents was reasonably open on the evidence. Adopting the language of ASIC v P Dawson Nominees, the Full Bench found that the words sought to be redacted could not reveal the identity of the Requestor or even “give rise to a strong suspicion” as to their identity: at [115].

154. SafeWork’s appeal against this aspect of the Commissioner’s decision thus failed.

155. But the Full Bench found that the Commissioner had erred in relation to the disputed photographs, explaining that it disagreed with the Commissioner’s factual findings in respect of the photographs. While accepting that they did not directly identify the Requestor, again adopting the terminology in ASIC v P Dawson Nominees, it concluded that “when combined with information in another document or the reader’s background knowledge, the Photographs may reveal the identity of the Requestor, or at least give rise to a strong suspicion as to their identity” at [117]. It was not reasonably open on the evidence for the Commission to find otherwise and so this aspect of SafeWork’s appeal succeeded: at [118].

156. On the cross-appeal the Full Bench concluded that Mr Visscher had failed to establish the grounds he had advanced. It noted that he had explained the forensic value he claimed in his notice of contention that the unredacted documents would have: at [134].

157. But the Full Bench was not persuaded that in order to advance his external review application, he needed to know the identity of the Requestor. It also concluded that the claims he advanced did not “give rise to a sufficient interest to override the public interest in maintaining the Requestor’s anonymity”: at [135].

158. The Full Bench also noted that the disputed photographs did not appear to be relevant to the decision to issue the notice, not having been referred to in either the notice or the inspection report: at [137]. It noted that Mr Visscher had tendered a transcript of his discussion with the inspector on the day of the inspection, when he was advised that the photographs could not be used against him.

159. In the result, the Full Bench did not accept that “the Photographs could have any forensic weight in respect of the matters requiring determination in the external review. That review will require an assessment as to whether there was a proper basis for Mr Fripp to invoke s 195 of the WHS Act as at 7 December 2020. The state of the property at some indeterminate earlier time is of no apparent relevance”: at [139].

160. The cross appeal was thus dismissed.

The Full Bench did not err

161. I am satisfied that Mr Visscher’s case that the claimed immunity did not arise or attach to any of the redacted documents cannot be accepted. Further, that there was a real public interest in non-disclosure of the identity of the Requestor, given that such disclosure could discourage potential future informers from bringing the existence of safety risks and hazards to the attention of SafeWork, as the Full Bench accepted: see ASIC v P Dawson Nominees at [28].

162. I also consider that it must be accepted that non-disclosure would help encourage persons who observe safety risks which might result in people being seriously injured or even killed at a workplace as the result of exposure to hazards which are present there, bringing them to the attention of SafeWork. It being the body given the power to take steps which could prevent the materialisation of such risks.

163. That there is a considerable public interest in such disclosure cannot sensibly be doubted.

164. I am also satisfied that the notion that a claim of public interest immunity in such disclosure was one which the Commission had no jurisdiction to consider in proceedings brought before it under the WHS Act, is simply wrong.

165. Mr Visscher criticised the Full Bench’s reference to the immunity claimed as a “privilege”. Nothing can turn on this. Indeed Mr Visscher himself relied on that term in the case which he advanced, relying on the observations of Brereton J in In the matter of Prismex Technologies Pty Ltd; Taggert v Matyear [2013] NSWSC 278 at [5], from which the Full Bench quoted when dealing with the cross appeal. There his Honour observed:

“As to the redaction, I have on many occasions indicated that those who redact documents produced pursuant to a notice or tendered as evidence, without the leave of the court embark on a perilous course. Redaction except where made as a matter of a claim of privilege is not a matter of right, but something permitted only with the court’s leave.” (Emphasis added.)

166. Here, of course, SafeWork was advancing an immunity claim, as it was entitled to do, opposing disclosure of the Requestor’s identity to Mr Visscher. That raised questions both of the relevance of the Requestor’s identity to what lay in issue on his review application and if relevant, what the public interest required in the circumstances.

167. As to the latter, given the nature of the jurisdictions which the Commission has to exercise, questions of what the public interest requires, including in the case of a claim of public interest immunity, arise to be determined from time to time, including before the Full Bench: see for example Crown Employees (Public Sector – Salaries 2008) Award (2088) 180 IR 149; [2008] NSWIRComm 142.

168. This reflects that s 146(2) of the Industrial Relations Act requires the Commission to take the public interest into account in the exercise of its functions. It is also expressly empowered to make non-disclosure orders as to the identification of any person, whether or not a party to the proceedings or a witness, or the doing of any other thing which may lead to the person’s identification, if satisfied that it is necessary to do so in the public interest: s 164A of the Industrial Relations Act.

169. Public interest immunity was explained in Sankey, the concept being that production of a document, although relevant and otherwise admissible, will not be ordered when that would be injurious to the public interest.

170. That the disputed documents were relevant on the review application, was correctly not accepted by the Full Bench.

171. But it also considered that the general rule as to the claimed immunity had two aspects, which may conflict, discussed at [38]-[39] of Sankey. First, that production of relevant and admissible documents may not be ordered when their disclosure is injurious to the public interest. Second, that the public interest in the administration of justice should not be frustrated by the withholding of documents which must be produced, if justice is to be done.

172. Thus the Full Bench also considered whether the public interest in production of the documents was outweighed by any public interest in the identity of the Requestor not being disclosed.

173. The Full Bench came to a different conclusion to Murphy C, in relation to the disputed photographs. They both accepted that this was a situation where the immunity which had been recognised in other authorities in relation to informants, extended to the Requestor, who had provided the information in question to SafeWork through the Speak Up app: at [99]. But they disagreed about the possibility of the provision of the unredacted photographs leading to the identification of the Requestor, which the immunity did not permit.

174. I can see no error in the Full Bench’s conclusions.

175. Even if relevant to the review application, that there could have been any public interest in disclosure of the Requestor’s identity seems questionable.

176. That is because the exercise of the inspector’s s 195 powers did not depend on the information which the Requestor had provided. Rather, it depended on the existence of a reasonable belief about any activity that was occurring at the workplace at Mr Visscher’s building site, or which may occur there, that involved or would involve a serious risk to the health or safety of a person, emanating from an immediate or imminent exposure to a hazard.

177. That is why the inspector had to attend Mr Visscher’s site in order to see the site and to inspect the scaffold. That is, in order to establish first, that it was a workplace; second, what activity was or might be occurring there; and third, whether such activity involved a serious risk to the safety of any person who was exposed to hazards which the inspector identified existed.

178. That inspection plainly led to the inspector’s conclusion that there was a hazard, given the state of the scaffold, which could not prevent a fall from a significant height. Whether there was a reasonable basis for that conclusion, is yet to be determined.

179. But it follows in the circumstances which the Commission had to consider, that even if there had been a public interest in the disclosure of the identity of the Requestor, that was outweighed by the public interest in non-disclosure, as the Full Bench concluded. That is because of the real role which such disclosures can play in helping to prevent serious injury or even death materialising from a hazard existing at a workplace.

180. The Full Bench also had to consider the disputed redactions. SafeWork did not challenge the conclusions it reached on those documents in respect of which its appeal failed. But Mr Visscher challenged the conclusions reached about the disputed photographs.

181. Mr Visscher has not established that the Full Bench erred in its conclusions, which resulted from its application of the relevant principles.

182. While it accepted the Commissioner’s factual findings that some redactions were unnecessary, it concluded that contrary to his view, there was also immunity attaching to the photographs. That was because it found that it was not reasonably open on the evidence to find other than that when combined with information in another document or the reader’s background knowledge, the photographs “may reveal the identity of the Requestor, or at least give rise to a strong suspicion as to their identity”, following ASIC v P Dawson Nominees at [117].

183. Nothing which Mr Visscher advanced established that this conclusion was not open on the photographs and other documents in evidence.

184. In the result the orders which Mr Visscher seeks cannot be made and his amended summons must be dismissed.

Costs

185. The usual costs order under the Uniform Civil Procedure Rules is that costs follow the event: r 42.1. The parties each indicated that they sought such an order. In this case that is an order that Mr Visscher must bear SafeWork’s costs, as agreed or assessed.

Orders

186. For the reasons given, I thus order that the amended summons be dismissed and that Mr Visscher must bear SafeWork’s costs, as agreed or assessed.

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Decision last updated: 31 March 2023