Industrial Relations Commission New South Wales Medium Neutral Citation: SafeWork NSW v Visscher [2021] NSWIRComm 1051 Hearing dates: 10 June 2021 Date of orders: 1 July 2021 Decision date: 01 July 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan on delegation from the Full Bench Decision: The notice of motion filed by SafeWork NSW on 27 May 2021 is dismissed Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – Application to adduce fresh evidence – principles to apply – whether the evidences raises probability of a different verdict Legislation Cited: Industrial Relations Act 1996 (NSW) ss 190A, 191 Industrial Relations Commission Rules 2009 r 8.4 Work Health and Safety Act 2011 (NSW) ss 229, 271 Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155 New South Wales v Electrical Trades Union of Australia, New South Wales Branch and Anor (2003) 130 IR 284; [2003] NSWIRComm 404 Category: Procedural rulings Parties: SafeWork NSW (Appellant) Timothy Visscher (Respondent) Representation: I Latham of Counsel (Appellant) T Visscher (Self) File Number(s): 2021/123596 decision 1. Matter number 2021/12730 involves an application for external review pursuant to s 229 of the Work Health and Safety Act 2011 (NSW) brought by Timothy Visscher. That matter is allocated to Murphy C. 2. In those proceedings Mr Visscher issued a notice to produce, directed to SafeWork NSW ("SafeWork"). Some of the documents produced by SafeWork in response to that notice were redacted. Mr Visscher filed a notice of motion seeking orders that the documents be produced in unredacted form. 3. The notice of motion was heard by Murphy C on 7 April 2021. The Commissioner upheld the notice of motion in part. He directed that SafeWork: 1. remove a redaction which had been made to p 3 of a document titled "WSMS RFS Report – 1-425075" ("RFS Report"), and produce the unredacted document; 2. remove a redaction that had been made to a document titled "Speak UP App Submission Report" ("App Report"), and produce the unredacted document; and 3. produce three photographs that had been redacted by SafeWork NSW completely ("Photographs"), ("Decision"). 1. By application filed on 28 April 2021, and amended with leave on 24 May 2021, SafeWork has sought to appeal the Decision ("Appeal"). (For the sake of completeness I observe that by application filed on 12 May 2021 Mr Visscher sought to cross-appeal the Decision, but that is not relevant for present purposes.) 2. On 27 May 2021 SafeWork filed a notice of motion seeking leave to adduce fresh evidence in respect of the Appeal, pursuant to r 8.4 of the Industrial Relations Commission Rules 2009 ("Motion"). I was nominated by the Chief Commissioner under s 190A(1)(d) of the Industrial Relations Act 1996 (NSW) to hear and determine the Motion. 3. The Motion contains the following grounds: 1. a "concern" held by SafeWork that production of the documents referred to at [3] above (collectively, "Documents") without the relevant redactions "will directly or circumstantially disclose the identity of the requestor/informer [1] who provided the information set out in those documents"; and 2. that the fresh evidence is required to demonstrate that the Documents will directly or circumstantially disclose the identity of the informer. 1. The Motion was supported by an affidavit of Erin Derrig, Principal Lawyer, Department of Customer Service, sworn 26 May 2021. Ms Derrig deposed: "6. The fresh evidence sought to be adduced is necessary in the appeal as the evidence will demonstrate that the documents will directly or circumstantially disclose the identity of the informer/requestor." 1. The further evidence which SafeWork seeks to adduce is contained in two affidavits of Anthony Williams, the Executive Director, Compliance and Dispute Resolution, with SafeWork, each sworn on 26 May 2021. One of the affidavits is described as "open" and the other as "confidential". Both have been provided to the Commission for the purposes of determining the Motion. 2. In broad terms, the open affidavit of Mr Williams traverses the following matters: 1. the process by which documents were produced by SafeWork in response to Mr Visscher's notice to produce, culminating in the Decision; 2. a description of the "Speak UP" application operated by SafeWork, the emphasis on confidentiality in that application and the need for confidentiality to be maintained in respect of that application. This is said to include the need to maintain public confidence in being able to report a safety complaint on a confidential basis, to avoid the risk of the flow of information from the community "drying up". 1. The confidential affidavit of Mr Williams was the subject of high-level discussion in the presence of Mr Visscher at the hearing of the Motion, and it can similarly be addressed in this decision. It suffices to say that it attaches the Documents in unredacted form. 2. It is apparent that the evidence that SafeWork seeks to adduce through Mr Williams goes beyond demonstrating that "the documents will directly or circumstantially disclose the identity of the informer/requestor". 3. In written submissions filed on 27 May 2021, SafeWork contended that through the Appeal it was seeking to be excused from producing the Documents in unredacted form as the information redacted in the Documents was "properly the subject of a claim for public interest immunity". It was said that for the Appeal to be prosecuted "it will be necessary for fresh evidence to be adduced that will explain the claim of public interest immunity". The submissions explored the principle of public interest immunity, and the operation of the "informant rule" which was said to be at the heart of the principle. 4. Section 191(1) of the Industrial Relations Act provides that 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. However, s 191(2) empowers the Full Bench to grant leave for a party to adduce further evidence if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against. 5. For the purposes of s 191(2), SafeWork relied only on the contention that "special grounds exist" to warrant leave being granted to adduce the fresh evidence. 6. In Akins v National Australia Bank (1994) 34 NSWLR 155 ("Akins") Clarke JA observed (at 160): "…Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible." 1. I have also had regard to the discussion in Electrical Contractors Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch and Anor (2003) 130 IR 284; [2003] NSWIRComm 404 at [67]-[86]. It is not necessary to reproduce those passages. 2. There was no controversy that the evidence sought to be adduced by SafeWork would be credible, and so satisfy the third condition in Akins. However, SafeWork conceded that the first condition of Akins was not met. It submitted: "5. In this case, the Commission would be satisfied of the higher test that it is almost certain or reasonably clear that an opposite result would have been produced by the proposed evidence. In addition the evidence is credible. 6. The appellant does accept that the evidence was reasonably available before the Commissioner. That fact, however, there is only one fact that must be weighed in the balance. When the general requirements of justice had regard to; the reasons for the exercise of the discretion are compelling." (Sic, emphasis in original) 1. In considering these submissions, three observations may be made arising from the transcript of the proceedings before Murphy C on 7 April 2021. Firstly, the Commissioner accepted that SafeWork should not be required to disclose the name of the informer. He acknowledged in particular that SafeWork is entitled under s 271 of the Work Health and Safety Act to protect that person's identity. [2] He determined, however, that as a factual matter removing the redactions from the Documents would not have the effect of disclosing the informer's identity. [3] 2. By way of particular example, in connection with the Photographs the Commissioner had the following exchange with Counsel for SafeWork: [4] "READ: Without, your Honour, any confirmation or evidence to support the identity of the requester or indeed there's elements of-- COMMISSIONER: I'm not requiring you to do that. I'm upholding your claim not to disclose the identity of the requester, but these photos don't do that. READ: Well, I cannot - my instructions are, your Honour, that they do and it will be readily apparent from disclosure of those photographs who the person who made the complaint was. COMMISSIONER: I require them to be produced." 1. Secondly, Murphy C took into account concerns raised as to the potential implications of the identity of the informer being disclosed. He had the following exchange with Mr Visscher: [5] "COMMISSIONER: As I recall, Ms Derrig in her affidavit or submissions or somewhere in the materials indicated that one of the reasons why they were wanting to not disclose the identity of the complainant was a fear of reprisal from yourself and you took issue with that. You wanted to - I think you even wanted to cross-examine her about that? APPLICANT: Yes, I did take issue with it, yes. COMMISSIONER: Yes, well, I can tell you now I'm entirely uninterested in that. It's got nothing to do with my function on an external review. What I have to focus on is what happened, not the motives, not the all sorts of consequences, whether there's a potential reprisal or not. I don't care. All I care about is what happened that led to the prohibition notice being issued and what your arguments are as to why it should be rescinded. APPLICANT: I understand that. COMMISSIONER: And the motivation of people is something that I'm entirely disinterested in." 1. Thirdly, and perhaps most significantly, it is apparent from the transcript that Murphy C had before him unredacted versions of each of the Documents. [6] It was by reference to them – considering the words sought to be redacted in the RFS Report and the App Report, and having viewed the Photographs – that the Commissioner determined that their production would not identify the informer. 2. In this context, I fail to see how evidence regarding the Documents is properly to be described as "fresh". More than being information that was "reasonably available before the Commissioner" as SafeWork submitted, it was in fact before him, even if it may not have been tendered and accepted into evidence. 3. In large part the evidence that SafeWork seeks to adduce on the Appeal traverses the very matters to which the Commissioner had regard, namely: 1. SafeWork's legitimate interest in protecting the identity of informers; 2. concerns as to the potential ramifications of the informer's decision in the present matter being disclosed; and 3. the unredacted Documents. 1. Specifically in relation to the open affidavit of Mr Williams, I note the following exchange that I had with Mr Latham of Counsel, who appeared for SafeWork at the hearing of the Motion: [7] "COMMISSIONER: Then if I go back, Mr Latham, to the decision and, as I said, there's no question on the face of the document that the Commissioner was unaware of the need for confidentiality. LATHAM: Yes. COMMISSIONER: And really I don't think it's properly - well, I don't think it's put that he failed to apprehend the issues. It's just that he made inappropriate factual findings, in effect. LATHAM: That's-- COMMISSIONER: Incorrect, incorrect factual findings. LATHAM: Yes, yes. COMMISSIONER: So on that point, why do I need the open - why would the Full Bench need the open affidavit of Mr Williams? LATHAM: Could I just have one moment about that? I was going to respond to that probably too quickly. Could I say this, Commissioner. I think the reference to the Speak Up app might be of some relevance in the case, which is described in the open affidavit, but the essence of the evidence that's sought to be adduced is in the private affidavit. COMMISSIONER: It's in the confidential affidavit, isn't it? LATHAM: Yes." 1. In the circumstances, I am not persuaded that SafeWork has demonstrated that it is "certain or reasonably clear that an opposite result would have been produced by the proposed evidence". The second condition in Akins is not met. 2. SafeWork has failed to meet the onus it bears in respect of the Motion. It follows that the Motion must be dismissed. 3. At the same time, assuming that leave to appeal is granted to SafeWork and depending on the basis on which the Appeal is pressed, to determine the Appeal the Full Bench might require access to unredacted versions of the Documents. Nothing in this decision is intended to preclude them being made available to the Full Bench if that is necessary to dispose of the Appeal. Whether that is required, and the means by which that should occur, can only be considered once the Appeal Books are filed and the parties' positions on the Appeal are crystallised. Order 1. The notice of motion filed by SafeWork NSW on 27 May 2021 is dismissed. Damian Sloan Commissioner ********** Endnotes 1. For ease of reference, I will refer simply to "the informer". 2. Tcpt, 7 April 2021, p 9(37-38) 3. See for example, ibid. pp 4(37-38), 5(4-9), 6(4-6) 4. ibid. p 13(40-50) 5. ibid.pp 8(41)-9(9) 6. ibid. pp 4(5-8), 4(27-31), 10(20-27), 11(5-7), 11(15-31) 7. Tcpt, 10 June 2021, p 17(12-39) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 July 2021