Visscher v Fripp [2024] NSWIRComm 1075

Industrial Relations Commission New South Wales Medium Neutral Citation: Visscher v Fripp [2024] NSWIRComm 1075 Hearing dates: 26 September 2024 Date of orders: 10 December 2024 Decision date: 10 December 2024 Jurisdiction: Industrial Relations Commission Before: Commissioner McDonald Decision: Does the Industrial Relations Commission have power, pursuant to s 164(1)(d) of the Industrial Relations Act 1996, to direct that the Director of Public Prosecutions prosecute a person for perjury pursuant to s 327 of the Crimes Act 1900? Answer: No Orders made: 1. The applicant's notice of motion filed on 27 June 2024 is dismissed. 2. The proceeding is dismissed. Catchwords: EMPLOYMENT AND INDUSTRIAL LAW — Work health and safety — Regulators and inspectors — SafeWork inspector who issued Prohibition Notice pursuant to s 195 of Work Health and Safety Act 2011 (NSW) accused by recipient of Prohibition Notice of having committed perjury when giving evidence in an external review by the Industrial Relations Commission of SafeWork's internal review of the Prohibition Notice EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — Procedure and powers — Whether the Commission has power pursuant to s 164(1)(d) of Industrial Relations Act 1996 (NSW) to direct the Director of Public Prosecutions to commence a prosecution against a person for perjury – Held the Commission does not have that power COURTS AND JUDGES — Supreme Court — Inherent jurisdiction – Section 23 of Supreme Court Act 1970 (NSW) – "necessary for the administration of justice" – whether the Supreme Court and consequently the Industrial Relations Commission, has power to direct the Director of Public Prosecutions to commence a prosecution against a person for perjury CRIME — Public justice offences — Perjury — Ability of a judicial officer to direct that a person be prosecuted for perjury — Role of the Director of Public Prosecutions STATUTORY INTERPRETATION — Amendment and repeal — Linguistic maxims — Presumption against surplusage — Implied exclusion of omitted matters Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Crimes Act 1900 (NSW), ss 4, 327, 338, 340 (repealed) 341 Crimes (Public Justice) Amendment Act 1990 (NSW) Criminal Procedure Act 1986 (NSW), ss 3, 8 Director of Public Prosecutions Act 1985 (NSW), ss 7, 9 Industrial Arbitration Act 1940 (NSW), s 124 (repealed) Industrial Relations Act 1991 (NSW), s 308 (repealed) Industrial Relations Act 1996 (NSW), s 164, 335B (repealed) Industrial Relations Amendment Act 2023 (NSW) Industrial Relations Amendment (Industrial Court) Act 2016 (NSW) Supreme Court Act 1970 (NSW), ss 22, 23 Work Health and Safety Act 2011 (NSW), ss 195, 229 Cases Cited: Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 Benedek and Anor v Meng and Anor [1997] NSWSC 675 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; [1992] HCA 64 Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113; [2018] NSWCA 143 Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588 European Asian Bank AG v Wentworth (1986) 5 NSWLR 445 Hassan v Sydney Local Health District [2021] NSWCA 97 Killen v Lane [1983] 1 NSWLR 171 Le Mesurier v Connor (1929) 42 CLR 481; [1929] HCA 481 Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37 Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Rail Corporation of NSW v Elleray [2017] NSWSC 1726 Simpson v Hodges [2007] NSWSC 1230 Taheri v Vitek (2014) 87 NSWLR 403; [2014] NSWCA 209 Visscher v SafeWork NSW [2024] NSWIRComm 1012; 328 IR 400 Visscher v SafeWork NSW [2024] NSWIRComm 1038 Young v Cooke [2016] NSWSC 1386 Z v University of A (No 8) [2004] NSWADT 100 Texts Cited: Christopher Corns, Public Prosecutions in Australia, Law, Policy and Practice (2014, Lawbook Co Director of Public Prosecutions Bill Industrial Court Bill 1990 Industrial Relations Bill 1990 Industrial Relations Bill 1991 New South Wales Legislative Assembly Parliamentary Debates (Hansard), 17 May 1990 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 1 December 1986 VLRC Contempt of Court Report, February 2020. Category: Procedural rulings Parties: Timothy Visscher (Applicant) Warren Fripp (Respondent) Director of Public Prosecutions (NSW) (Intervenor) Representation: Counsel: Dr D T Kell SC with A Mykkeltvedt (Respondent) J Davidson (Intervenor)