Visscher v SafeWork NSW [2022] NSWSC 908

Supreme Court New South Wales

Medium Neutral Citation: Visscher v SafeWork NSW [2022] NSWSC 908 Hearing dates: 06 July 2022 Date of orders: 06 July 2022 Decision date: 06 July 2022 Jurisdiction: Common Law Before: Garling J Decision: Dismiss the plaintiff's Notice of Motion filed 8 March 2022. Catchwords: CIVIL PROCEDURE — Separate determination of questions — Where appropriate — Questions sought to be determined do not arise in the proceedings Legislation Cited: Civil Procedure Act 2005 s 62 Uniform Civil Procedure Rules 2005 rr 28.1, 28.2 Cases Cited: Not applicable Texts Cited: Not applicable Category: Procedural rulings Parties: Tim Visscher (P) SafeWork NSW (D1) The Industrial Relations Commission of New South Wales (D2) Representation: Counsel: Self-Represented (P) I Latham (D1) Submitting appearance (D2)

Solicitors: Legal, Corporate Services, Department of Customer Service (D1) Crown Solicitor for NSW (D2) File Number(s): 2022/31494 Publication restriction: Not applicable

Ex Tempore Judgment 1. A Notice of Motion is brought by the plaintiff, Mr Timothy Visscher, seeking orders pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 ("UCPR") for the identification of separate questions for determination in the proceedings and, secondly, seeking that those questions be referred together with entire proceedings into the Court of Appeal. The details of the questions and the basis for referral to the Court of Appeal are set out in the Notice of Motion which was filed 8 March 2022 2. The underlying proceedings in this Court were commenced by a Summons, filed 3 February 2022 by the plaintiff, seeking judicial review of a decision of the Full Bench of the Industrial Relations Commission of NSW on 17 December 2021. The Full Bench heard an application for leave to appeal, an appeal, and a cross-appeal from a decision of a single Commissioner of the Industrial Relations Commission which was delivered on 7 April 2021. The Full Bench upheld the appeal against the original decision and quashed an order of the single Commissioner. 3. In this Court, by way of judicial review, the plaintiff seeks to identify error in the way in which the Full Bench determined the matters before it. In the course of his submissions, the plaintiff accepted that the separate questions sought to be decided which are set out in paragraphs 1(a)‑(m) inclusive of the Notice of Motion of 8 March 2022 do not arise as part of the judicial review proceedings commenced by the Summons. 4. However, he seeks to argue that the provision of r 28.2 of the UCPR does permit such questions to be raised in this Court, answered in this Court and, if appropriate, be referred by this Court to the Court of Appeal. 5. Section 62 of the Civil Procedure Act 2005 provides that: "(1) The court may, by order, give directions as to the conduct of any hearing, including directions as to the order in which evidence is to be given and addresses made. (2) The court may, by order, give directions as to the order in which questions of fact are to be tried." 1. Rule 28.1 of the UCPR provides that: "In Part 28 [which includes r 28.2], question includes any question or issue in any proceedings, whether of fact or law or partly of fact and partly of law …" 1. Rule 28.2, which is relied upon by the plaintiff, is in the following terms: "The court may make orders for the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings." 1. It is beyond any rational argument that r 28.2 is a provision which, as the definition in r 28.1 makes plain, refers to questions arising in the proceedings in which the order is sought. It is not an independent, stand-alone, head of power for this Court to hear and determine any question at all, whether it arises in proceedings before it or not. 2. As the questions set out in the Notice of Motion are conceded by the plaintiff not to arise in the principal proceedings by way of judicial review, a concession which is obviously correctly made, it is not open to the Court pursuant to r 28.2 to identify the questions posed as separate questions and to lay out a procedure for their answer. 3. In those circumstances, it follows that it would be inappropriate to refer the questions to the Court of Appeal no matter how important the plaintiff thinks they are. 4. It is for those reasons that I dismiss the plaintiff's Notice of Motion filed 8 March 2022.