Visscher v SafeWork NSW [2024] NSWIRComm 1038

Industrial Relations Commission New South Wales Medium Neutral Citation: Visscher v SafeWork NSW [2024] NSWIRComm 1038 Hearing dates: 3 and 4 June 2024 Date of orders: 21 June 2024 Decision date: 21 June 2024 Jurisdiction: Industrial Relations Commission Before: Chief Commissioner Constant, Commissioner Sloan and Commissioner Webster Decision: Leave to appeal is refused Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Appeals – appeal against decision dismissing application under s 229 of the Work Health and Safety Act 2011 for external review of a decision to issue a prohibition notice – whether leave to appeal should be granted – whether Commissioner erred in finding that an owner-builder constructing a dwelling was conducting an "undertaking" – whether the Commissioner erred in finding the inspector held the "reasonable belief" required by s 195 of the WHS Act when issuing the prohibition notice – whether the Commissioner denied the applicant procedural fairness in not permitting him to adduce rebuttal evidence – whether the decision at first was otherwise affected by error Legislation Cited: Industrial Relations Act 1996 ss 187, 188 Work Health and Safety Act 2011 ss 5, 7, 195, 224, 229 Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155 Charles v Northern New South Wales Local Health District [2016] NSWIRComm 8 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 Hamod v State of New South Wales and Anor [2011] NSWCA 375 Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263; [2005] NSWIRComm 409 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v Roads and Maritime Services [2015] NSWIRComm 16 Redmond v Director General, NSW Department of Health, on behalf of the Ambulance Service of New South Wales [2012] NSWIRComm 147 SafeWork NSW v Visscher [2021] NSWIRComm 1051 SafeWork NSW v Visscher (No 3); Visscher v SafeWork NSW (No 2) [2021] NSWIRComm 1099 Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association (2022) 320 IR 249; [2022] NSWSC 1178 Visscher v SafeWork NSW [2024] NSWIRComm 1012 Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 Texts Cited: Nil Category: Principal judgment Parties: Timothy Visscher (Applicant) SafeWork NSW (Respondent) Representation: T Visscher (self-represented) N Read of Counsel (Respondent) File Number(s): 2024/00104196 Publication restriction: No Decision under appeal Court or tribunal: Industrial Relations Commission of New South Wales Citation: Visscher v SafeWork NSW [2024] NSWIRComm 1012 Date of Decision: 28 February 2024 Before: Commissioner McDonald File Number(s): 2021/00012730