SafeWork NSW v Visscher (No 2); Visscher v SafeWork NSW [2021] NSWIRComm 1087

Industrial Relations Commission New South Wales Medium Neutral Citation: SafeWork NSW v Visscher (No 2); Visscher v SafeWork NSW [2021] NSWIRComm 1087 Hearing dates: 12 November 2021 Date of orders: 12 November 2021 Decision date: 12 November 2021 Jurisdiction: Industrial Relations Commission Before: Commissioner Sloan on delegation from the Full Bench Decision: I order that the Summons to Produce issued to Ms Emma Hogan on 27 October 2021 be set aside. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – Application for leave to set aside summons to produce Legislation Cited: Work Health and Safety Act 2011 s 195, 229 Cases Cited: Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Category: Procedural rulings Parties: SafeWork NSW (Appellant/Respondent) Timothy Visscher (Respondent/Appellant) Representation: I Latham of Counsel (SafeWork NSW) T Visscher (Self) File Number(s): 2021/123596 and 2021/136519

EX TEMPORE decision 1. On 11 January 2021 Timothy Visscher filed with the Industrial Registry an application for external review pursuant to s 229 of the Work Health and Safety Act 2011 ("WHS Act). The application relates to a decision by SafeWork NSW ("SafeWork") to issue him with a prohibition notice, pursuant to s 195 of the WHS Act, on 7 December 2020. That matter is allocated to Murphy C. 2. In those proceedings Mr Visscher was granted leave to serve on SafeWork a notice to produce. 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 remove the redactions that had been made to particular documents ("Decision"). 4. By application filed on 28 April 2021, and amended with leave on 24 May 2021, SafeWork has sought to appeal the Decision ("Appeal"). In broad outline, SafeWork contends that the redactions which Murphy C ordered be removed are necessary to protect the identity of the informer and so are protected by public interest immunity privilege. 5. By application filed on 12 May 2021 Mr Visscher sought to cross-appeal the Decision ("Cross-Appeal"). Again in broad outline, he contends that Murphy C erred in allowing any redactions to remain. Significantly, the Cross-Appeal also raises a question of jurisdiction which challenges the power of SafeWork to have issued him with the prohibition notice on 7 December 2020 and, by extension, the Commission's jurisdiction to deal with the proceedings. 6. The Appeal and Cross-Appeal were heard by the Full Bench on 10 September 2021. The Full Bench determined that although the question of jurisdiction had not been raised in the proceedings before Murphy C, and so was not properly a ground of appeal as such, as the Commission's jurisdiction had been called into question it was necessary that this be addressed by the Full Bench. It was determined that the Full Bench would hear from the parties on the question of jurisdiction at a subsequent hearing scheduled for 29 November 2021. Leave was granted to SafeWork to file evidence going to that question. Mr Visscher indicated that all of the evidence on which he would rely was already contained in the Appeal Books. 7. The Full Bench proceeded to hear the parties on the other matters arising from the Appeal and Cross-Appeal. 8. On 27 September 2021 SafeWork filed with the Industrial Registry an affidavit of Warren Fripp, an Inspector with SafeWork, affirmed on 23 September 2021. 9. On 27 October 2021 Mr Visscher issued a Summons to Produce to Ms Emma Hogan, the Secretary of the Department of Customer Service ("Summons"). The Summons sought the production of documents in 12 categories or sub-categories. It is not necessary that I reproduce them. 10. By notice of motion filed on 2 November 2021, SafeWork sought an order that the Summons be set aside. That summons was supported by an affidavit of Erin Derrig, a Principal Lawyer with the Department of Customer Service, sworn on 1 November 2021. 11. By notice of motion filed on 8 November 2021, Mr Visscher sought an order that all documents produced "in reply to a Summons to Produce, must not be masked or redacted, except by a claim of privilege or grant of leave by the Commission". 12. Both of the motions came before me, on delegation from the Full Bench, today. Mr Latham of Counsel appeared for SafeWork on behalf of the Crown. Mr Visscher was self-represented. 13. In part in recognition that Mr Visscher is a self-represented but capable litigant, I commenced proceedings today with a more inquisitorial approach than might otherwise be adopted. I examined with the parties, but in particular with Mr Visscher, some preliminary concerns that I had with the Summons and the motion which Mr Visscher had filed. 14. In the first place, I explored concerns that the documents sought to traverse grounds that are presently before the Full Bench for determination; that is, whether or not Murphy C was correct in ordering that redactions to particular documents be removed. 15. Second, I sought to explain that in the proceedings before the Full Bench there are currently two relatively limited issues. The first is whether the Commission is invested with jurisdiction to deal with the matter and secondly, if so, whether Murphy C erred in the Decision. I noted to the parties that it is only in respect of Mr Visscher's jurisdictional challenge that the Full Bench has yet to hear from the parties. Consequently, the issues currently before the Commission for determination are confined to that fairly narrow compass. 16. During the course of and potentially as a consequence of that discussion, Mr Visscher withdrew the motion he had filed on 8 November 2021. He also proposed that the Summons be limited to calling for the documents referred to in items a., b. and c. of Schedule 1 of the Summons. Notwithstanding this amendment, SafeWork maintained its opposition to the Summons and pressed its motion. 17. Mr Latham took me to two authorities, namely, Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536; [2008] NSWCCA 65 and Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145. I have considered those authorities but do not propose to quote from them extensively for the purposes of this ex tempore decision. 18. That said, Mr Visscher drew my attention to an extract from the decision of Brereton J in the Blacktown City Council case and, in particular, at [89] in which his Honour stated: "89. …In my view, at least in civil proceedings and in the absence of any question of public interest immunity, no more is required to support the issue of a subpoena for production than that there is a reasonable basis for supposing that the material called for will likely add in the end, in some way or another, to the relevant evidence in the case. …" 1. Relying on this passage, Mr Visscher submitted that the evidence sought to be obtained through the Summons will go to discredit the case of SafeWork as it will show that SafeWork has inserted words into the complaint. 2. To my mind, this underscores what I perceive to be a misapprehension on Mr Visscher's part as to what the case presently is. As I have said, the matter currently requiring determination by the Full Bench is, firstly, whether the Commission has jurisdiction and, secondly, whether there was an error by Murphy C in the Decision. What Mr Visscher has not been able to establish is how the information he has sought goes to the question of jurisdiction which is on for hearing on 29 November 2021. The observations of Brereton J as to whether material would likely add to the relevant evidence in the case has to be considered in light of the stage of proceedings at which a summons is issued and the issues requiring determination at that stage. The case of SafeWork to which Mr Visscher referred is more to be determined, if at all, in the substantive proceedings but do not require determination by the Full Bench in the matters arising under the present appeal. 3. I am not satisfied that Mr Visscher has demonstrated that the Summons has been issued for a legitimate forensic purpose. Specifically in relation to item a. in Schedule 1 to the Summons, I would add a concern that it might be seen, whether deliberately or otherwise, as an attempt to determine the identity of the informant, which is, as Mr Latham submitted, a matter squarely before the Full Bench. This would provide a further basis on which that item of the Summons ought to be set aside. 4. For these reasons, I find for SafeWork on its motion.