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

Industrial Relations Commission New South Wales Medium Neutral Citation: SafeWork NSW v Visscher (No 3); Visscher v SafeWork NSW (No 2) [2021] NSWIRComm 1099 Hearing dates: 10 September 2021 and 29 November 2021 Date of orders: 17 December 2021 Decision date: 17 December 2021 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster Decision: In respect of the Appeal: (1) leave to appeal is granted; (2) the Appeal is upheld in so far as it challenges the decision of Murphy C to order the production of the Photographs without redaction; (3) the decision of Murphy C to order the production of the Photographs without redaction is quashed; and (4) the Appeal is otherwise dismissed. In respect of the Cross-Appeal: (1) leave to cross-appeal is granted; and (2) the Cross-Appeal is dismissed. The stay ordered by the Chief Commissioner on 20 May 2021, as extended by Sloan C on 10 June 2021, is lifted. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Jurisdiction – owner-builder issued with prohibition notice – whether site a "workplace" – whether owner-builder engaging in an undertaking at the time prohibition notice issued EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeal – documents produced under notice to produce were redacted – claim of public interest immunity – whether immunity attaches to complaints made to SafeWork NSW – whether such immunity outweighs the interests in having the documents in unredacted form available to the applicant Legislation Cited: Industrial Relations Act 1996 ss 162, 188, 190A Occupational Health and Safety Act 1985 (Vic) s 22 Uniform Civil Procedure Rules 2005 Pt 34 Work Health and Safety Act 2011 ss 3, 5, 7, 8, 19, 195, 224, 229, 271 Work Health and Safety Regulation 2017 cll 78, 225, Pt 3.1 Cases Cited: Alister v The Queen (1984) 154 CLR 404 Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd and Others (2008) 247 ALR 646; [2008] FACFC 123 Certain Lloyds Underwriters Subscribing to Contract Number IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56 Commissioner of Police v Platts [2021] NSWIRComm 1021 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia & Anor v Sunset Power International Pty Ltd trading as Delta Electricity [2018] NSWIRComm 1072 D v National Society for the Prevention of Cruelty to Children [1978] AC 171 Finch v Grieve (1991) 22 NSWLR 578 Grace v Grace (No 8) [2014] NSWSC 419 Hussman Australia Pty Ltd v Walker (1993) 48 IR 396 In the matter of Prismex Technologies Pty Limited; Colin Lindsay Taggert v John Matyear [2013] NSWSC 278 Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14 Inspector Maltby v Harris Excavation and Demolition Pty Ltd [1997] NSWIRComm 58 Legal Services Commission v Trotter (1990) 54 SASR 74 Morgan v Commissioner of Police (NSW) (2011) 209 IR 374; [2020] NSWCA 134 R v Young (1999) 46 NSWLR 681; [1999] NSWCCA 166 Rogers v Home Secretary [1973] AC 388 Sankey v Whitlam (1978) 142 CLR 1 The Queen v A2 [2019] HCA 35 Whittaker v Delmina Pty Ltd [1998] VSC 175 WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325 WorkCover Authority of NSW (Inspector Moore) v E&T Bricklaying Pty Ltd [2015] NSWDC 369 WorkSafe New Zealand v Dong SH Auckland Limited [2020] NZHC 3368 Zopf v Industrial Relations Secretary on behalf of the Department of Customer Service [2020] NSWIRComm 1012 Texts Cited: Nil Category: Principal judgment Parties: SafeWork NSW (Appellant/Cross-Respondent) Timothy Visscher (Respondent/Cross-Appellant) Representation: I Latham of Counsel (Appellant/Cross-Respondent) T Visscher (Self) File Number(s): 2021/123596 and 2021/136519 Publication restriction: No Decision under appeal Court or tribunal: Industrial Relations Commission of New South Wales Citation: N/A – decision delivered ex tempore Date of Decision: 7 April 2021 Before: Commissioner Murphy File Number(s): 2021/12730