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…

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: [2023] NSWSC 317
Decision Date: 31 March 2023

CaseChat Overview and Summary

Visscher v SafeWork NSW (No 3) involved a judicial review application seeking to challenge a decision by the Full Bench of the Industrial Relations Commission of New South Wales. The dispute arose from a prohibition notice issued by an inspector under the Work Health and Safety Act 2011 (NSW) concerning an owner-builder who was constructing their own house. The plaintiff applied for external review of the prohibition notice before the Industrial Relations Commission, raising the issue of public interest immunity concerning documents produced in redacted form.

The central legal issues before the court were whether the plaintiff qualified as a "worker" under the Work Health and Safety Act 2011 (NSW) and the meanings of "undertaking" and "workplace." Specifically, the court had to determine whether the building site constituted a "workplace" and if the owner-builder was conducting an "undertaking." Additionally, the court needed to decide whether the Industrial Relations Commission correctly found that public interest immunity applied to the documents in question.

The court found that the Industrial Relations Commission did not err in determining that public interest immunity applied to the documents in question. It held that the Industrial Relations Act 1996 (NSW) did not grant the Commission the jurisdiction to consider the plaintiff's claim of public interest immunity. The court concluded that there was no jurisdictional error on the part of the Commission, affirming its decision regarding the immunity of the documents. The outcome of the case was that the Commission's determination regarding the immunity of the documents was upheld, and the application for judicial review was dismissed.

Orders