SafeWork NSW v Visscher

Industrial Relations Commission (NSW)|2021-09-10

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

Factual context

Mr Visscher is the owner-builder of a residential property at Catherine Hill Bay in New South Wales.
On 7 December 2020 SafeWork NSW received a report raising concerns as to the work practices allegedly being adopted by Mr Visscher on his site. The report was accompanied by photographs ("Photographs"). The individual who made the report is described in some of the evidence as "the Requestor", and we will adopt the same term.
The Requestor made their report through a mobile reporting system maintained by SafeWork NSW known as the "Speak Up Save Lives app" ("Speak Up App"). This is a tool that allows for health and safety concerns to be reported to SafeWork NSW by way of a mobile telephone application.
Following receipt of the Speak Up App report, SafeWork NSW prepared a document titled "Speak UP [sic] App Submission Report, Request for Service" ("Submission Report"). The Submission Report purported to capture the information which had been provided by the Requestor. The alleged safety concern was outlined under a heading "Description of issue". The Photographs were attached to the Submission Report.
SafeWork NSW gave the report a "request for service", or "RFS", number. It created a further document titled "WSMS RFS Report - 1-425075" ("RFS Report"). The RFS Report contained a "Description of Issue" in the same terms as that contained in the Submission Report.
On 7 December 2020 Warren Fripp, an Inspector with SafeWork NSW, attended Mr Visscher's site. Having spoken to Mr Visscher and after inspecting the site, Mr Fripp issued Mr Visscher with a prohibition notice pursuant to s 195 of the WHS Act ("Prohibition Notice"). The effect of the Prohibition Notice was to preclude Mr Visscher from conducting further work on the property until he had taken certain steps to remedy what were said to be deficiencies in the scaffolding erected on the site to "eliminate the risk of falls from the scaffolding".
On 14 December 2020 Mr Visscher made an application for an internal review of the decision to issue him with the Prohibition Notice, pursuant to s 224 of the WHS Act. In a letter dated 24 December 2020, Jim Allison, the Manager of the Governance and Appeals Unit at SafeWork NSW, informed Mr Visscher that the decision of Mr Fripp to issue the Prohibition Notice had been confirmed.
On 11 January 2021 Mr Visscher commenced proceedings in the Commission seeking an external review of the decision to issue the Prohibition Notice, pursuant to s 229 of the WHS Act.
On 8 February 2021 Murphy C made orders in Chambers, including that Mr Visscher have leave to issue to SafeWork NSW a notice to produce in the form of a document which had been filed by Mr Visscher that day.
SafeWork NSW produced documents in response to the notice to produce on 11 February 2021. A number of the documents produced, including the Submission Report, the RFS Report and Mr Fripp's notebook, had been redacted in part by SafeWork NSW. The Photographs had been redacted entirely.
On 12 February 2021 Mr Visscher filed a notice of motion seeking orders that SafeWork NSW produce documents sought in the notice to produce without redactions. The motion was heard by Murphy C on 7 April 2021.
At the hearing, SafeWork NSW raised a claim of public interest immunity over the Submission Report, the RFS Report and the Photographs ("Documents"). It argued that the redactions were necessary to protect the identity of the Requestor, as the Documents would otherwise, directly or circumstantially, identify the Requestor.
Commissioner Murphy was not persuaded that all of the content of the Documents which had been redacted would or could disclose the Requestor's identity, but that some of that content might. The Commissioner: 1. determined that: 1. SafeWork NSW was not entitled to redact certain words appearing under the heading "Description of issue" (sic) in the Submission Report; 2. SafeWork NSW was not entitled to redact identical words appearing under the heading "Description of Issue" in the RFS Report; 3. SafeWork NSW was not entitled to redact the Photographs; and 4. all other redactions in the Submission Report and the RFS Report were to remain; and 1. ordered that SafeWork NSW produce the Documents to Mr Visscher having removed the redactions referred to at [17(1)(a)]-[17(1)(b)] above and from the Photographs ("the Relevant Redactions").
On 28 April 2021 SafeWork NSW filed an Application for Leave to Appeal and Appeal from the Decision. Mr Visscher filed an Application for Leave to Cross-Appeal and Cross-Appeal ("Cross-Appeal") on 12 May 2021.
On 20 May 2021 the Chief Commissioner granted SafeWork NSW leave to file an Amended Application for Leave to Appeal and Appeal. The Chief Commissioner also granted a stay of the orders made by Murphy C pending the matter coming before Sloan C, who was nominated under s 190A of the Industrial Relations Act 1996 ("IR Act") to deal with an interlocutory application in the appeal, on 10 June 2021.
SafeWork NSW filed an Amended Application for Leave to Appeal and Appeal on 24 May 2021 ("Appeal").
On 10 June 2021 Sloan C ordered that the stay ordered by the Chief Commissioner be extended pending further order of the Commission.

Jurisdictional challenge

Before considering the grounds on which the Appeal and Cross-Appeal are brought, it is necessary to determine a question arising from the Cross-Appeal as to the Commission's jurisdiction.
The Cross-Appeal contained the following contentions: "F. The questions raised by the cross-appeal are: … (c) With regard to the cross-appellant's pleadings, the Full Bench should consider a question of jurisdiction. A question of law: within the meaning of s 5 of the Work Health and Safety Act 2011 [NSW] Is an individual person a 'person conducting a business or undertaking' after ceasing to conduct any business or undertaking for 574 days whilst building his home, solo and in isolation? … H. Grounds of the appeal are: … (b) Within the meaning of s 5 of the Work Health and Safety Act 2011 [NSW] the cross-appellant is not 'a person conducting a business or undertaking'. (c) The cross-appellant in not bound by or subject to the provisions of the Work Health and Safety Act 2011 [NSW]. I. Relief claimed: … (b) Declaration: 'Within the meaning of s 5 of the Work Health and Safety Act 2011 [NSW] the cross-[appellant] is not a person conducting a business or undertaking'.
SafeWork NSW submitted that the question of jurisdiction did not properly arise on appeal, as it had not been raised before, much less been the subject of a determination by, Murphy C. It contended that "[t]here can be no error if the matters was never previously raised"1 and that the Full Bench "should leave that matter for ultimate determination by the Commissioner". [1]
We accept that the issue of jurisdiction is not properly a ground of appeal. While the Appeal Book filed in respect of the Cross-Appeal contained submissions and evidence filed by Mr Visscher on 21 April 2021, two weeks after the Decision, and those documents raised the jurisdictional argument, there is nothing to suggest that the argument had been raised before Murphy C or that the Commissioner had made a finding as to jurisdiction.
However, that is not the only consideration arising from Mr Visscher's contentions. If he is indeed "not bound by or subject to the provisions of" the WHS Act, it is not simply a question as to the power of Mr Fripp to issue the Prohibition Notice purportedly pursuant to s 195 of the WHS Act. Rather, the contention goes to whether Mr Visscher was entitled to invoke the Commission's jurisdiction under s 229 of that Act. If not, the entire proceedings, including these appeal proceedings, may constitute a nullity.
For these reasons, at the hearing of the Appeal and Cross-Appeal on 10 September 2021 the Full Bench determined that it would hear from the parties on the question of jurisdiction. Directions were made for the parties to file and serve evidence and submissions. The Full Bench took evidence and heard submissions from the parties on the question of jurisdiction on 29 November 2021.

The legislation

The Prohibition Notice was issued pursuant to s 195 of the WHS Act, which provides: 195 Power to issue prohibition notice (1) This section applies if an inspector reasonably believes that - (a) an activity is occurring at a workplace that involves or will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard, or (b) an activity may occur at a workplace that, if it occurs, will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard. (2) The inspector may give a person who has control over the activity a direction prohibiting the carrying on of the activity, or the carrying on of the activity in a specified way, until an inspector is satisfied that the matters that give or will give rise to the risk have been remedied. (3) The direction may be given orally, but must be confirmed by written notice (a prohibition notice) issued to the person as soon as practicable.
Section 195 contemplates activity occurring, or which may occur, "at a workplace". The term "workplace" is defined in s 8(1) of the WHS Act as "a place where work is carried out for a business or undertaking and includes a place where a worker goes, or is likely to be, while at work".
The term "worker" is defined in s 7(1) of the WHS Act as a person who "carries out work in any capacity for a person conducting a business or undertaking". In the circumstances of this case, Mr Visscher does not fall within this definition.
Under the heading "Details of serious risk" the Prohibition Notice contained the following entry: [2] "I, Warren Fripp reasonably believe on 7/12/2020 at 2:46:55PM that an activity may occur at the workplace that will involve a serious risk to the health or safety of a person emanating from an imminent exposure to a hazard and that this activity is likely to contravene, a provision of the Work Health and Safety Act 2011, section 19 and Work Health and Safety Regulation 2017, clause 78."
Section 19 of the WHS Act is titled "Primary duty of care". It is unnecessary to reproduce the provision. It suffices to say for the purposes of these proceedings that it relevantly imposes a duty on a "person conducting a business or undertaking" (as that term is defined in s 5 of the WHS Act) ("PCBU") to ensure, so far as is reasonably practicable, the health and safety of workers engaged by the person while the workers are at work in the business or undertaking.
It is similarly unnecessary to reproduce the entirety of cl 78 of the Work Health and Safety Regulation 2017 ("WHS Regulation"). It relevantly provides that a PCBU must manage, in accordance with Pt 3.1 of the WHS Regulation, risks to health and safety associated with a fall by a person from one level to another that is reasonably likely to cause injury to the person or any other person.

Evidence and submissions

SafeWork NSW read an affidavit of Mr Fripp sworn on 23 September 2021. In that affidavit, Mr Fripp described the circumstances that led to him attending Mr Visscher's property; his observations at the site; his recollection of his conversation with Mr Visscher; and, the process of reasoning by which he decided to issue Mr Visscher with the Prohibition Notice. He deposed: "20. I explained to Mr Visscher how our jurisdiction works and, briefly, the definition of a 'Person Conducting a Business or Undertaking' ('PCBU'). I informed Mr Visscher that because he has engaged contractors to perform high risk construction work, is likely to engage more contractors on his construction site as workers in the future, and that he is operating as a Principal Contractor on a Construction Project valued at more than $250,000, that he would be considered a PCBU. 21. Mr Visscher agreed that he operated as the Principal Contractor when there are Contractors on site, but pointed out that there were no workers currently onsite and that there hadn't been for a long time, and that there will not be any for months. 22. I explained to Mr Visscher that you cannot turn on and off being a PCBU for a construction project like this each time a worker comes on site. I explained that you are either are [sic] a PCBU, or you are not, and that you need to ensure safety throughout the entire construction project."
Mr Visscher read an affidavit he swore on 11 October 2021. In large part, the affidavit took issue with Mr Fripp's recollection of the conversation he and Mr Visscher had on 7 December 2020. Mr Visscher tendered, by consent, the transcript of an audio recording that he had taken of part of that conversation.
We observe that in his cross-examination of Mr Fripp and in some of the evidence that he had filed on the question of jurisdiction, Mr Visscher sought to challenge both the validity of the safety concerns reflected in, and relied on by Mr Fripp to issue, the Prohibition Notice. He also impugned Mr Fripp's motivations in issuing the Prohibition Notice. We do not propose to traverse or offer comment on those issues. To the extent that they properly arise, they are not germane to the issues currently requiring determination by the Full Bench.
Mr Visscher also relied on a statement dated 20 April 2021 that he had made in the proceedings below, which is contained in the Appeal Book on the Cross-Appeal. That statement reveals the following chronology of events: Date Event 1 November 2016 Mr Visscher and his wife purchase a block of residential land at Catherine Hill Bay 7 September 2017 Mr Visscher is issued with an owner-builder permit 10 November 2017 The site is surveyed by a licenced surveyor 15 to 16 November 2017 The site is excavated by a licenced excavator 24 November 2017 to 16 December 2017 A concrete slab, with plumbing connections, is installed 5 to 11 January 2018 External plumbing and drainage work is undertaken by licenced plumber 14 to 18 January 2018 Al fresco concrete work is undertaken by a licenced concreter 21 January 2018 A termite protective strip is installed by contractor 22 January 2018 to 9 March 2018 Deliveries of concrete blocks, steel reinforcing bars and steel reinforcing mesh are made to the site. Mr Visscher is performing the building work 1 to 8 March 2018 A concrete driveway is installed by a licenced concreter 10 to 17 March 2018 The laying of concreting blocks is undertaken by licenced bricklayer 3 to 4 April 2018 Electrical power to the site is connected by a licenced electrician 5 April 2018 Mr Visscher continues to work solo on the site Early June 2018 An engineer and building certifier conduct inspections of the steel reinforcing bars in the concrete blocks. Work stops during the inspections 6 June 2018 Concrete core filling, lasting approximately 4 hours, is undertaken by a contractor 16 November 2018 The engineer conducts an inspection of the installation of steel beams. Work stops during inspection 12 May 2019 The building certifier inspects the reinforcing bars inside the concrete blocks. Work stops during inspection 13 May 2019 Concrete core filling, lasting approximately 4 hours, is undertaken by a contractor 16 to 23 November 2019 Deliveries of MagSulate sheet cladding material are made to the site 9 January 2020 The engineer attends the site to carry out deflection testing of the sheet cladding 25 September 2020 The building certifier attends site to inspect the joists 7 December 2020 The Prohibition Notice is issued

Based on this chronology, Mr Visscher accepted that he was a PCBU from 10 November 2017 until 4 April 2018. Thereafter, with the exception of 6 June 2018 and 13 May 2019 when he engaged contractors to attend the site to undertake concrete core filling, he claimed that he did not have that status.
Mr Visscher contended that he could only be regarded as conducting an undertaking when there was on site a worker with whom he had a commercial or contractual relationship, and over whom he had management or supervisory responsibility over them. As a consequence, Mr Visscher described himself as having been involved in a series of undertakings: during the period 10 November 2017 to 4 April 2018 when contractors he had engaged were regularly on site, and on 6 June 2018 and 13 May 2019 when contractors he had engaged performed core filling. He did not accept that the attendance on site of the engineer or the building certifier fell into this category as he "had no control over them…they decide when they're going to come". [3]
Mr Visscher observed that as at 7 December 2020 it had been 574 days since he had last engaged a contractor at the site. He disputed that as at that date there was a legitimate basis for Mr Fripp to determine that he was a PCBU and, having made that determination, issue him with the Prohibition Notice.
SafeWork NSW submitted: [4] "9. When the Full Bench looks at the activity and what has been done, the answer becomes clear. Mr Visscher accepts that he was a PCBU from 10 November 2017. That concession was properly made given the reference to the others who worked there including a licensed surveyor, a licensed excavator, concreters installing a concrete building slab and plumbers. The site was no different to any other building site. 10. The distinction that Mr Visscher tries to draw is that he was only a PCBU while those other trades were specifically engaged to do work at the precise time in question. Given that there were no such tradesmen involved at the precise time of the visit by the inspector; Mr Visscher submits that there was no longer an undertaking and he was no longer a PCBU. 11. On that basis, Mr Visscher would be a PCBU while the tradesmen were in place. The moment that they left, whether for the evening or for ever, he would cease to be a PCBU. That would be an absurd and artificial outcome. …" (Sic, footnotes omitted, emphasis in original)
In his oral submissions, Mr Latham of Counsel, who appeared for SafeWork NSW, contended that on Mr Visscher's approach "the notion of a PCBU becomes entirely ambulatory". [5]
In fairness to Mr Visscher, the contentions at par 11 of the submissions of SafeWork NSW reproduced above do not accurately reflect his position. This was clarified in the following exchange between the Bench and Mr Visscher: [6] "SLOAN C: If I just take that one step further then. As I apprehend your affidavit of 21 April you more or less accept that for the period from 10 November 2017 when the site was surveyed through to approximately 4 April when electrical power was connected to the site, that you were properly to be regarded as a PCBU for that period. I think after that period from about 5 April you're less certain about it, and I think on one reading of your evidence you'd say from that date you were not a PCBU but if you were, it was on two occasions when the concrete core filling was being undertaking. Is that‑‑ APPLICANT: That is my submission from the end of the electrical work there were two occasions, and as I say on those occasions I had organise the work to be done. I had made contractual arrangements with people delivering concrete and other paraphernalia, and the concrete pump. There were probably about three different contracts ‑ sorry, three different contracts I was subject to on each of those occasions to effect the core filling, and each of those occasions took about four hours. SLOAN C: Picture a different situation though. Picture a situation where ‑ and let's assume that we're in that first period commencing 10 November 2017. Everyone downs tools on a Friday afternoon with a plan to come to work on Monday. If you continue working on the property over the weekend you say that you are not a PCBU for those two days? APPLICANT: No, I don't, your Honour, no. SLOAN C: So to Mr Latham's point about the concept of PCBU becoming ambulatory in this sense, are you asking the commission to form a largely value judgment as to the length of time being such that since you had last engaged a contractor, that the effluxion of time meant that you could not properly be regarded as a PCBU? APPLICANT: That is my case, your Honour. You know, you've got to look at this in the circumstances. The first case you drew me to where everyone knocks off for the weekend and someone goes out over the weekend, the intention is that it's an ongoing process, there are contracts in place, there are people will come back on Monday, you've probably got a work schedule worked out and it all senses, you know, to use Mr Latham's words is a normal building site. What my submission is, is given the effluxion of time I don't have a normal building site, a regular building site. …"

Determination

Distilled to its essence, the question for the Full Bench is whether on 7 December 2020 Mr Visscher was subject to the jurisdiction of SafeWork NSW pursuant to the WHS Act. If Mr Fripp had no power to issue him with the Prohibition Notice, there is a question as to whether the WHS Act was ever properly enlivened.
In his written outline of submissions, Mr Visscher contended: [7] "92. The Full Bench must determine that it is essential for Mr Visscher to be a 'person conducting a business or undertaking' within the meaning of s 5 of the WHS Act, at the relevant time, for it to have jurisdiction."
The focus by Mr Visscher on the definition of "person conducting a business or undertaking" in s 5 of the WHS Act misapprehends the requirements of s 195. That section does not require that the recipient of a prohibition notice be a PCBU. To paraphrase the provision, it empowers an inspector to issue a prohibition notice to a "person who has control over [an] activity" where the inspector reasonably believes that: 1. the activity is occurring, or may occur, at a workplace; and 2. the activity involves, will involve or would if it occurs involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard.
The "activity" described in the Prohibition Notice was "Working on Scaffolding or upper level balcony". There is no controversy that Mr Visscher was the person with control over that activity. The question for determination is whether that activity was taking place at a workplace - that is, at a place where work was carried out for a business or undertaking (s 8(1) of the WHS Act).
Mr Visscher's evidence and submissions, and his cross-examination of Mr Fripp, focussed on the legitimacy of Mr Fripp's decision that the scaffolding at the site was non-compliant and posed a risk. This included considerable cross-examination as to whether the scaffolding could properly have been determined to be non-compliant with cl 225 of the WHS Regulation, which we observe was not a provision invoked by Mr Fripp. Mr Visscher called into question Mr Fripp's recollection of the events of 7 December 2020, highlighting discrepancies between the transcript of the conversation held that day, referred to at [35] above, and the contents of Mr Fripp's affidavit. He suggested that this called into question the inspector's credibility.
These are not, however, matters which properly go to jurisdiction. They are relevant to the question of whether the Prohibition Notice should have been issued, not whether it could have been issued. Mr Fripp's apparent reliance on s 19 of the WHS Act and cl 78 of the WHS Regulation in issuing the Prohibition Notice falls into the same category.
To return to the question, then, was the site a "workplace" for the purposes of s 195 of the WHS Act? To answer this question the Full Bench must construe the meaning of the word "undertaking" as it is used in the WHS Act, there being no suggestion that Mr Visscher was carrying out work in a business.
The principles of statutory construction are well settled. They were summarised in Certain Lloyds Underwriters Subscribing to Contract Number IH00AAQS v Cross (2012) 248 CLR 378; [2012] HCA 56. For present purposes we will reproduce only the following passages from the joint judgment of French CJ and Hayne J: "23. It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue: 'This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.' 24. The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, '[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute' (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision 'by reference to the language of the instrument viewed as a whole', and 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. 25. Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. …'[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have' (emphasis added). And as the plurality went on to say in Project Blue Sky: 'Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.'" (Footnotes omitted)
The technique of statutory construction is to choose from among the range of possible meanings the meaning which Parliament should be taken to have intended: Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14 at [57].
SafeWork NSW also drew our attention to the following passages from the joint judgment of Kiefel CJ and Keane J in The Queen v A2 [2019] HCA 35: "32. The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision. 33. Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. 'Mischief' is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve."
In construing the meaning of the word "undertaking", it is relevant to have regard to the object of the WHS Act, which is relevantly set out in s 3 as follows: 3 Object (1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and workplaces by - (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and … (d) promoting the provision of advice, information, education and training in relation to work health and safety, and (e) securing compliance with this Act through effective and appropriate compliance and enforcement measures, and (f) ensuring appropriate scrutiny and review of actions taken by persons exercising powers and performing functions under this Act, and (g) providing a framework for continuous improvement and progressively higher standards of work health and safety, and … (2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable.
In our view, this object argues against a narrow construction of the meaning of "undertaking". In WorkSafe New Zealand v Dong SH Auckland Limited [2020] NZHC 3368, a judgment of Downs J of the High Court of New Zealand to which Mr Visscher referred us, the Court considered legislation in similar terms to the WHS Act. His Honour observed, in comments apposite to the WHS Act: "28. Four things about all this stand out. First, the breadth of duties created by the Act. Second, the Act's emphasis of its purpose, including through creation of the principles that workers and others should be given the highest level of protection. Third, the breadth of the concept of a PCBU. Specified exemptions alleviate a wide-ranging definition. Fourth, the Act's emphatic rejection of form in the advancement of purpose."
Mr Visscher submitted that "business" and "undertaking" were "the same thing by a different name". [8] He argued: [9] "In context, the essence of an 'undertaking' is that it is analogous to a 'business', whilst not necessarily being one. That is to say, an 'undertaking' is really a 'claytons business', the business you're conducting when you're not conducting a business." (sic)
We reject this contention. It is inconsistent with the principles of statutory construction outlined above to suggest that Parliament would use different words to refer, essentially, to the same thing. Further, it does not accord with the ordinary grammatical meaning of the legislation, noting in particular the use of the disjunctive "or".
We note also the following observations of Downs J in WorkSafe New Zealand v Dong: "30. These features leave no room for the conclusion a PCBU must arise in a particular way, still less the conclusion a PCBU must be contractually tied to the activity in question. Were it otherwise, the Act would be frustrated. So too potentially, workplace health and safety."
While these comments concern the meaning of a PCBU, they are apposite to the meaning of "business or undertaking" in the definition of "workplace" in s 8 of the WHS Act.
SafeWork NSW referred the Commission to the judgment of Hansen J in Whittaker v Delmina Pty Ltd [1998] VSC 175 in which his Honour considered the meaning of the word "undertaking" in the context of s 22 of the Occupational Health and Safety Act 1985 (Vic), which provided: 22. Duties of employers and self-employed persons Every employer and every self-employed person shall ensure so far as is practicable that persons (other than the employees of the employer or self-employed person) are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer or self-employed person.
His Honour observed: "47. There was some debate before the Magistrate and me as to the interpretation of the word 'undertaking'. The word is not defined in the Act. The expression is broad in its meaning. In my view such a broad expression has been used deliberately to ensure that the section is effective to the duty it states. …"
We recognise the differences between the legislation considered in Whittaker, and that currently before the Commission. We nevertheless find the comments of Hansen J to be of assistance.
The position of SafeWork NSW is essentially that the construction project on which Mr Visscher was engaged was an undertaking. Until the completion of that project he remained a PCBU. In support of these contentions, SafeWork NSW referred us to several authorities. We will deal with each in turn.
In WorkCover Authority of NSW (Inspector Moore) v E&T Bricklaying Pty Ltd [2015] NSWDC 369 the Court had to determine whether an injured worker was "at work in the business or undertaking" of a bricklaying business which had been contracted to perform work on a construction site. Given the factual differences between that case and that of Mr Visscher, it is of little assistance.
In Inspector Maltby v Harris Excavation and Demolition Pty Ltd [1997] NSWIRComm 58 the question was whether a demolisher engaged to work on a construction project had ceased to be involved in the project prior to the project manager confirming that the work required had been satisfactorily completed. Those facts bear no resemblance to the present matter.
Similarly, WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325 involved the question as to whether a self-employed pool builder, who had been engaged to construct a pool in connection with the building of a house, was conducting an undertaking at the time of the relevant incident. It was found that he was so, as the pool had not been completed at the time.
None of these authorities support the proposition that an individual owner-builder becomes and remains a PCBU from the time of commencement of building through to its completion. Rather, the cases demonstrate that a factual analysis is required to determine a person's status and liability under the WHS Act at the relevant point in time, with each case turning on its own facts.
We consider that the same approach must be taken to the question of whether Mr Visscher's site was to be regarded as a "workplace" as at 7 December 2020.
The distinction that Mr Visscher attempts to draw between the contractors he engaged and other visitors to the site such as engineers and building certifiers is misguided. To construe the legislation so as to regard the construction project as an undertaking, and by extension a workplace, only when workers who have been contracted by Mr Visscher and over whom he exercises management or supervisory responsibility are engaged on the project would undermine the object of the WHS Act.
In this case, the "undertaking" was the construction project itself. Work was carried out for that undertaking continuously from 10 November 2017. After 5 April 2018 the work was conducted predominantly by Mr Visscher himself, but during that period others performed work on the site, albeit sporadically.
Having regard to the purpose of the WHS Act and the context in which the term appears in the overall scheme of that Act, we are satisfied that as at 7 January 2020 Mr Visscher's site was properly to be regarded as a "workplace" within the meaning of s 8 of the WHS Act. It was within Mr Fripp's power to issue the Prohibition Notice pursuant to s 195 of the WHS.
As previously stated, whether Mr Fripp could reasonably have formed the belief required by s 195 that an activity was occurring at the workplace which involved "a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard" is a matter to be determined in the substantive hearing of Mr Visscher's application for external review. The same can be said for Mr Fripp's reliance on alleged breaches of s 19 of the WHS Act and cl 78 of the WHS Regulation. These are not matters which go to the Commission's jurisdiction.
We find that the Commission has jurisdiction to hear and determine this matter. The contentions in the Cross-Appeal to the contrary are dismissed.

Grounds of the Appeal and Cross-Appeal

We turn now to consider the grounds of the Appeal and Cross-Appeal.
In the Appeal, SafeWork NSW contended that the Documents "are documents capable of disclosing the identity of the requestor and are therefore protected by public interest immunity". The Appeal included the following: "G. Reasons why leave to appeal should be granted: (a) The appeal raises a matter of such public importance that, in the public interest, leave should be granted. That matter involves the public interest in maintaining confidentiality over the identity of persons who report potential contraventions of health and safety laws to safe work NSW. (b) To the extent that the appeal seeks to challenge findings of fact, it raises issues relevant to the administration of justice as the findings were not open or reasonably open on the evidence. H. Grounds of the appeal are: (a) The Commission erred by failing to properly apply the relevant authorities when considering whether the documents could directly or circumstantially disclose the identity of the requestor; and (b) The Commission made a significant factual finding not reasonably open on the evidence, in particular that the documents were not capable of directly or circumstantially disclosing the identity of the requestor."
Leaving aside the contentions as to jurisdiction with which we have dealt, the Cross-Appeal included the following: "F. The questions raised by the cross-appeal are: (a) Whether the Commissioner failed to properly consider UCPR Part 34, the requirement to produce documents in clean form. (b) Whether the Commissioner was right to grant the cross-appellant limited access to documents listed in a Notice to Produce. … G. Reasons why leave to cross-appeal should be granted: (a) The cross-appeal raises important questions regarding the administration of justice. … H. The grounds of the appeal are: (a) The Commissioner erred in failing to apply the proper standard for the presentation of documents produced under UCPR Part 34. (b) The Commissioner erred in failing to order the production of documents listed [in] the Notice of Motion, filed 12 February 2021 in matter 2021/12730. …"

Leave to appeal

Section 188 of the IR Act is relevantly in these terms: 188 Appeals to Full Bench by leave only (1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. …
SafeWork NSW submitted, and we accept, that it is important not to conflate these two subsections. Subsection 188(2) mandates the circumstances in which the Full Bench must grant leave to appeal. Otherwise, and subject to s 188(4) (which deals with appeals by the Minister), the Full Bench has a discretion to determine whether it will grant leave, although that discretion must be exercised judicially: Morgan v Commissioner of Police (NSW) (2011) 209 IR 374; [2020] NSWCA 134 at [50].
The principles on leave to appeal are well-established: see for example, Zopf v Industrial Relations Secretary on behalf of the Department of Customer Service [2020] NSWIRComm 1012 ("Zopf") at [22]-[27]. Where an appeal raises issues of principle or law or has wider implications for the jurisprudence of the Commission, including whether the decision has widespread practical application, leave to appeal would normally be granted: Commissioner of Police v Platts [2021] NSWIRComm 1021 at [19]-[20].

To determine the merits

The ground set out at par H(a) of the Appeal asserts, in effect, that Murphy C erred in rejecting the claim of public interest immunity over the Documents. This is not to be regarded as a discretionary decision: Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd and Others (2008) 247 ALR 646; [2008] FACFC 123 at [21]. [10]
Similarly, the grounds in pars H(a) and (b) of the Cross-Appeal do not assert an error in the exercise of discretion, but an error in the application of the Uniform Civil Procedure Rules 2005 ("UCPR").
Where an impugned decision did not involve the exercise of a discretion the question for the Full Bench is whether the Commissioner reached the correct decision, not whether the decision was reasonably open to them: 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 at [26].
The ground set out at par H(b) of the Appeal, to the contrary, challenges the findings of fact made by Murphy C. The Full Bench would not interfere with the Commissioner's conclusions of fact "unless it is of the opinion that they were not reasonably open on the evidence": Hussman Australia Pty Ltd v Walker (1993) 48 IR 396 at 406. See also Zopf at [26] and the cases referred to in that paragraph.

Leave to Appeal

In its outline of submissions on leave to appeal, SafeWork NSW contended as follows: "5. It is a bedrock principle of the common law that informers will not be identified except in circumstances where [it] is necessary for the establishment of the innocence of the defendant. … 6. The principle of public interest immunity applies to the Commission. The principle extends beyond police informers. It extends to informers to private associations with a regulatory role such as the National Society for the Prevention of Cruelty to Children and professional disciplinary bodies. The same arguments apply even more strongly to body such as SafeWork which investigate and prosecute contraventions of criminal law in relation to workplace safety. … 10. The applicant for leave has no private interest in pursuing this appeal. A successful appeal have no bearing upon the ultimate decision as to whether the respondent will be successful in removing the Prohibition Notice. The evidence relied upon by the applicant for the ultimate hearing relies in no way upon the material that is the subject of this application. There is however a very serious public interest involved. That interest is the public interest in preventing the disclosure of the identity of an informant and the obvious potential reduction in the number of future informers. … 12. The applicant accepts that there are aspects of this case the tell against the grant of leave under s 188(1). They are that the matter involves a procedural aspect of the case. Further, the matter is an interlocutory step in the classic sense. 13. Nevertheless there are also aspects of this case that weigh strongly in favour of a grant of leave. They are that the matter itself raises a substantial matter of principle and is fundamental to the administration of justice. Further, such matters have not previously been dealt with by this Commission and are likely to arise in the future. 14. However even if the Full Bench was minded to reject all of these arguments as to a grant of leave under s 188(1); it would still be bound to consider the question of public interest under s 188(2). The public interest weighs overwhelmingly in favour of leave being granted." (Footnotes omitted)
Mr Visscher opposed the granting of leave to appeal in respect of the Appeal. His arguments centred on the contention that he knows the identity of the Requestor. He submitted: "12. In the present case the harm to be done is the identification of the 'informer'. The Respondent knows the identity of the 'informer', accordingly, no such harm can be done. 13. The consequence is that there is no longer any confidentiality attached to the identity of an informer and if the 'informer rule' were to apply (which it does not), it would cease to have any direct application. … 17. The Appeal is fatally flawed for the reason that the Respondent knows the identity of the 'informer'. The question of Public Interest Immunity does not arise. Leave to Appeal ought to be refused." (Footnotes omitted)
In support of these submissions, Mr Visscher contended that at the hearing on 7 April 2021 Murphy C accepted Mr Visscher's evidence that he knew the identity of the Requestor.
The flaw in Mr Visscher's argument is that it requires a determination by the Commission that would itself negate the claim for public interest immunity that is being pressed by SafeWork NSW - that is, that his assertions as to the identity of the Requestor are correct. If the Documents are of a class or contain content which attracts public interest immunity, it is for Mr Visscher to establish that he is nonetheless entitled to have them produced in unredacted form, in accordance with established authority (to which we will return). The Commission cannot permit itself to be led into potentially defeating a claim of public interest immunity by making findings as to whether a party's speculation as to the identity of an informer is correct.
We make no comment as to whether Mr Visscher has or has not correctly identified the Requestor.
We are persuaded to grant SafeWork NSW leave to appeal. The question as to whether disclosures to SafeWork NSW through the use of the Speak Up App attract public interest immunity is a matter having implications for the jurisprudence of the Commission beyond the circumstances of this case. Further, for reasons which follow, we are of the opinion that the Decision is affected in part by error which requires correction.

Grounds of appeal

In its outline of submissions in relation to the Appeal, SafeWork NSW submitted: "3. Should leave to appeal be granted, the appellant appeals the primary decision on the following basis: (i) Whether the Commission failed to properly apply the relevant authorities when considering whether the documents could either directly, or circumstantially, disclose the identity of the requestor; (ii) Whether the Commission made a finding of fact that was not reasonably open to it, in particular that the documents were not capable of disclosing the identity of the requestor; (iii) Whether the Commission made orders that were not open to it in light of the evidence before the Commission and the prevailing authorities. … 6. The appellant will need to find error in the original decision. There can be described [sic] in simple terms. By ordering the production of the unredacted documents; [sic] the Commissioner enabled the identification of the class of persons who may have created that document. In doing so, the Commissioner contravened a fundamental legal principle. … 17. It appears from the transcript that the Commissioner relied upon to reasons to compel production. The first was that the respondent already thought he knew who was the informer. The second is that the redacted documents did not disclose the identity of the informer. The first reason was irrelevant to the proper determination of the matter. Whether or not the respondent thought he knew the identity of the informant was in no way grounds for disclosure of matters that may have officially identified the informant. 18. The Commissioner did not determine the potential damage to the public interest and the interests of justice. The Commission did not conduct a balancing exercise of the competing interests. In failing to make either determination, the Commissioner fell into error. 19. The second reason is that the unredacted documents did so identify the informant. The Commissioner made an error of fact and [sic] determining that the identity of the informant could not be determined by reference to the document. This matter will be clarified in oral submissions."
At the heart of these submissions, and those made in the proceedings below, is the contention that the Documents attract public interest immunity on the basis that their production would disclose the identity of an informer. Commissioner Murphy accepted that public interest immunity might attach to the documents sought by Mr Visscher to be produced by SafeWork NSW under the notice to produce. His disagreed, however, that all of the redactions made by SafeWork NSW to the Documents were necessary to protect the identity of the Requestor.
The Commissioner's acceptance that public interest immunity attaches to the Documents is not a ground on which Mr Visscher has cross-appealed. However, in a document titled "Notice of Contentions" filed in response to the Appeal on 12 May 2021 Mr Visscher disputed that the Documents are protected from disclosure on the basis of public interest immunity. He contended that the law did not recognise the immunity as attaching to the class of documents identified in the Appeal - namely, "documents capable of disclosing the identity of the requestor".
While there may be some room for argument as to whether the question properly arises on appeal, this was not a point taken by SafeWork NSW. Given the submissions advanced by the parties we consider it appropriate to determine whether the Documents are protected from disclosure, in whole or in part, on the basis of public interest immunity.

Does public interest immunity privilege attach to the Documents?

The classic formulation of public interest immunity is contained in the judgment of Gibbs ACJ, as his Honour then was, in Sankey v Whitlam (1978) 142 CLR 1 at 38-39, as follows: "The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v. Rimmer, as follows: 'There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.' It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies. In other cases, however, as Lord Reid said in Conway v. Rimmer, 'the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it'. In such cases once the court has decided that 'to order production of the document in evidence would put the interest of the state in jeopardy', it must decline to order production. An objection may be made to the production of a document because it would be against the public interest to disclose its contents, or because it belongs to a class of documents which in the public interest ought not to be produced, whether or not it would be harmful to disclose the contents of the particular document. …"
His Honour further observed at 41: "The fundamental principle is that documents may be withheld from disclosure only if, and to the extent, that the public interest renders it necessary." And at 43: "For these reasons I consider that although there is a class of documents whose members are entitled to protection from disclosure irrespective of their contents, the protection is not absolute, and it does not endure for ever. The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice. The court will of course examine the question with especial care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled to the same measure of protection - the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned. If a strong case has been made out for the production of the documents, and the court concludes that their disclosure would not really be detrimental to the public interest, an order for production will be made. …"
In Alister v The Queen (1984) 154 CLR 404 his Honour, by then Chief Justice, observed at 412: "Sankey v. Whitlam establishes that when one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation. …"
In their joint judgment in Alister, Wilson and Dawson JJ observed at 436: "It is conceded by counsel for ASIO that the duty lies with the court to balance the competing aspects of the public interest. No doubt that duty will often be little more than a formality unless in the face of a claim based on security a compelling case is made out for the production of the documents."
Evidence which would identify police informers has been recognised as a class of documents which attracts public interest immunity: R v Young (1999) 46 NSWLR 681; [1999] NSWCCA 166 ("Young") at [130]. The rationale "is that unless the names of informers are protected, sources of information would dry up, thus hindering the police in the detection and prevention of crime": at [132]; see also [60].
SafeWork NSW drew our attention to a number of authorities where this immunity has been held to extend to informants who provide information to bodies such as the Gaming Board, [11] the National Society for the Prevention of Cruelty to Children, [12] the Australian Securities and Investments Commission, [13] the New South Wales Bar Council [14] and the Legal Services Commission of South Australia. [15] SafeWork NSW contended that the immunity should by analogy be extended to protecting the identity of individuals who report safety concerns to SafeWork NSW, including through the use of the Speak Up App.
It is not necessary that the documents over which immunity is sought would positively identify the informer. As stated by the Full Court in ASIC v P Dawson Nominees: "41. …Consistently with the underlying public policy of public interest immunity, the benefit of the doubt should be in favour of non-disclosure. There is always the risk that seemingly innocuous information in a particular document, when combined with information in another document or the reader's background knowledge, may reveal the identity of an informer, or at least give rise to a strong suspicion."
Having considered the authorities to which we have referred and the submissions of the parties, we are satisfied that public interest immunity may attach to documents that might disclose the identity of individuals who report safety concerns to SafeWork NSW, including through the Speak Up App. This is by analogy with the protection afforded to police informers. Whether that privilege ought to result in the non-disclosure of some or all of the contents of the documents will depend on the outcome of the application of the three step approach described in Alister.
It is convenient to address here a contention by Mr Visscher that the Appeal was "fatally flawed" as the Requestor had given consent to SafeWork NSW to provide him with the Submission Report. This was said to flow from the terms of the Submission Report itself. Under a heading "Consent" there appears the entry "Requestor consents to SafeWork NSW raising issue with relevant workplace parties", against which appears the word "Yes".
Mr Visscher submitted: [16] "5. Consent to 'raise issue' entails the requestor giving consent to SafeWork NSW for it to put the issue squarely to me, which, in turn, infers the requestor giving consent to SafeWork NSW for it to provide me with a copy of Request for Service document to the extent of showing me the 'issue' as set out in the 'Description of issue' field."
Mr Visscher's submission, with respect, is premised on a selective reading of the Submission Report. Immediately after the one on which he relies, there is another entry in the Submission Report stating "Requestor consents to SafeWork NSW making the parties aware that the issue was raised by the requestor" against which appears the word "No".
On our reading, the entry on which Mr Visscher placed reliance cannot be construed in the manner for which he contends. There is in any event no proper basis to suggest that the Requestor consented to the Submission Report being made available to Mr Visscher if to do so would result in the disclosure of their identity.

Did the Commissioner err by failing to apply the relevant authorities?

We do not accept the contention made by SafeWork NSW that the Decision was based, in whole or in part, on an acceptance by Murphy C as to Mr Visscher's professed state of knowledge as to the Requestor's identity. The following exchange took place at the hearing on 7 April 2021 (with "the Applicant" being a reference to Mr Visscher and "Read" being a reference to Mr N Read of Counsel, who appeared for SafeWork NSW): [17] "COMMISSIONER: While that is happening Mr Visscher I recall that you indicated on an earlier occasion that you were aware of the identity of the complainant. APPLICANT: That is correct Commissioner yes. COMMISSIONER: It seems that we are arguing about nothing, anyway can you hand me that page? READ: I can Commissioner. Can I just address you quickly on the claim for public interest immunity because it is - there is some authority that I've referred to in my submissions which are perhaps relevant. COMMISSIONER: If you're talking about the identity of the complainant or requester I don't need to hear you on that but what I want to know is, what is there in that first redaction. READ: Yes and you can look at that Commissioner. There is authority to suggest that you can look at that. COMMISSIONER: Thank you. I must say I don't see anything in that, that needs to be redacted. It's just a statement of fact of what happened. READ: Can I take your Honour to one of the relevant authorities because it is important in considering the redactions and whether it is information that is capable of disclosing the identity of the person who made the complaint. COMMISSIONER: Just explain to me how that would disclose the identity of the person who made the complaint. Which Mr Visscher knows anyway so what are we really arguing about here?"
In his subsequent consideration and determination of the arguments advanced by SafeWork NSW, the Commissioner made no reference to Mr Visscher's professed knowledge of the Requestor's identity. The Commissioner was concerned only to ascertain the extent to which the information the subject of the Relevant Redactions might have identified the Requestor.
Commissioner Murphy made no finding that the Requestor was the person identified by Mr Visscher. Rather, the Commissioner can be said to have been speculating as to the utility of the proceedings before him in an effort to, in his words, "cut to the chase". [18]
A proper reading of the Decision demonstrates that the Commissioner was aware that SafeWork NSW had raised a claim of public interest immunity; that he comprehended the nature of that claim; that he accepted the premise that the Documents were amenable to a claim of public interest immunity; and, that he conducted the necessary balancing exercise, "namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates": Alister v The Queen at 412.
This can be seen in the passage from the Decision reproduced at [106] above, and in particular the Commissioner "not needing to hear from" Mr Read on the public interest immunity claim. The following additional passages from the Decision also demonstrate the Commissioner's awareness of and approach to the claim: [19] "COMMISSIONER: All right let's assume that he doesn't know and you want to maintain the confidentiality of the complainant, [requestor] whatever you want to call it. Can't that be done by simply just redacting the name and address and phone number or any of those matters that go to identify - I don't see what that bit you redacted out of the description of issue, why he shouldn't have that. It's what occurred that led to the complaint. READ: It is your Honour, it's difficult to provide information without revealing the identity of the complainant but the relevant test is identified in the case of P Dawson Nominees v ASIC which I've referred to in my written submissions and I can provide a copy to your Honour if you like when considering the documents in question, starting at para 39. COMMISSIONER: These are your submissions are they? READ: I'll hand you the case your Honour. COMMISSIONER: Where should I look at? READ: If I could take your Honour quickly through the cases. I said earlier the issue is whether the document should be produced or not in the circumstances of the claim for public interest immunity, the test is a balancing test. Para 22 the court noted the decision of [Sankey] v Whitlam and said that was the appropriate test 'Whether the public interest...to relevant information'. I put relevant underline the word 'relevant information' because Mr Visscher in my submission is yet to identify how this might be relevant at all the identity of the informant to his application for-- COMMISSIONER: All right we are not dealing with the identity-- READ: I know your Honour so I'll address your question now your Honour you're talking about-- COMMISSIONER: Can we just go to that sentence that's been redacted from page 5. READ: 7 I think it was. Yes your Honour can I just-- COMMISSIONER: That just says what happened which led to the prohibition notice. READ: It does your Honour-- COMMISSIONER: How does that - he's entitled to know that. He can say 'well no that didn't happen, something else happened'. And that can be his case in seeking to have the prohibition notice rescinded. How can you keep that information from him? READ: Your Honour we say that that's information that might be capable of giving rise to the identity of the informer. COMMISSIONER: Well look I can tell you know I am against you on that but I am with you as far as the name, address, phone number or any other personal details. READ: Okay." And further: [20] "READ: Thank you for the time, Commissioner. I have a bundle of documents. Before I hand them up, Commissioner, could I just take you to the relevant paragraphs of the Full Court decision in [P Dawson Nominees]? It does set out some information about the test that's to be applied when assessing documents that are a claim for public interest immunity. It's at paragraph 39 to paragraph 41 of the relevant paragraphs I wish your Honour to read, at page 12. COMMISSIONER: Yes, I've read that but where, in these documents, is the statement of what it is alleged to have happened, that's information that Mr Visscher is entitled to have. That very first one we've just dealt with. READ: Yes, Commissioner. COMMISSIONER: That is what is alleged to have happened, which presumably - and I indicated earlier, I'm not across all of this paper yet-- READ: I'm not cavilling with your decision, Commissioner, I simply just ask you to bear that in mind when reviewing-- COMMISSIONER: All right, well, let's go through it. READ: It's not simply direct, direct information that directly identifies the request-- COMMISSIONER: No, I understand that. But the balancing act is that he, as the applicant for an external review, is entitled to know what it is that led to the issue of the prohibition notice in the first place, so that he can make his arguments that that should not have happened, it should be rescinded."
During the hearing on 7 April 2021, the Commissioner considered each of the redactions that had been made to the Documents. He took submissions from SafeWork NSW as to why the redactions were said to be necessary or appropriate and made ex tempore rulings. While he may have done so in a summary fashion, a fair and proper reading of the Decision reveals that the Commissioner was aware of the arguments being put to him and the task that he was required to perform.
We find that SafeWork NSW has failed to make out ground H(a) of the Appeal.

Did the Commissioner err in making a factual finding?

Ground H(b) of the Appeal asserts error in a factual finding made by Murphy C. To paraphrase the ground for greater precision, it contends that the Commissioner's factual finding that the Documents without the Relevant Redactions were not capable of disclosing the identity of the Requestor was not reasonably open on the evidence, and so was in error.
Commissioner Murphy had available to him unredacted copies of each of the Documents, as does the Full Bench. He determined that the information sought to be protected from disclosure through the Relevant Redactions in each of the Submission Report and the RFS Report he found was not information that might be capable of giving rise to the identity of the informer. We reiterate that the words sought to be redacted in each document are the same.
Having also had the chance to consider the unredacted Documents, we consider that the Commissioner's factual finding in respect of the Submission Report and the RFS Report was reasonably open on the evidence. Adopting the language of from ASIC v P Dawson Nominees, the words sought to be redacted could not reveal the identity of the Requestor or even "give rise to a strong suspicion" as to their identity.
In respect of the Photographs, the following extract from the Decision reflect the Commissioner's process of reasoning: APPLICANT: Probably those blanked out sections are photographs which, in my evidence, the inspector told me there were pictures of me or, sorry, a person he believed to be me, working on a scaffold. If, indeed, that is the case, those pictures are relevant to my case. They're very well linked to my case in the sense that it will show the safety or otherwise of what I was doing. The alternative is-- COMMISSIONER: Well, let me just ask Mr Read about that. Why shouldn't he have those photographs? READ: Because this is information that squarely falls within the nature of circumstantial material that would reveal or tend to reveal the identity of the informer. If your Honour looks at the first page, the document we have discussed, which is the same as page 7, your Honour will see-- COMMISSIONER: I'm sorry, I'm having trouble keeping up with you. READ: The page immediately before the photographs, which is the submission report. Your Honour will see, at the very bottom of that page, the words that I won't say in open court. COMMISSIONER: They can stay redacted. READ: Yes, your Honour. On the other side of the photographs that Mr Visscher has referred to, it's information that could readily be used to identify the identity of the informer in a circumstantial way. COMMISSIONER: How's that? Anyone could have taken these photographs. READ: I can't answer that question in Mr Visscher's presence, your Honour but it is straight forward, your Honour. COMMISSIONER: What are these letters and numbers above the photos? READ: I've no idea. COMMISSIONER: Do they identify anybody? READ: I would suggest that there's no way that they could reasonably identify anybody. Look, it may be that-- COMMISSIONER: Well, I don't know but if you want to - let's assume that you can redact those letters and numbers. But I can't see why he's not entitled to these photos. READ: If those photos - and it's an important issue - if those photos were ordered to be disclosed, the identity of the informer would be readily apparent to-- COMMISSIONER: But these photos go to the issue of the prohibition notice. READ: Well, your Honour, it's a balancing--] COMMISSIONER: Are you telling me that the inspector didn't have regard at all to these photos? And, if so, why are they in the documents? READ: Your Honour, the inspection report of the inspector is before your Honour in the affidavit of Ms Derrig, as is the prohibition notice, which expressly states what he had regard to when issuing the prohibition notice. The inspection report is annexure C to the affidavit of Ms Derrig. It talks about an attendance to the property on 7 December 2020. The inspection details record the inspector's observations on-- COMMISSIONER: Annexure C is where? READ: Annexure C to the affidavit of Ms Derrig, I'm very sorry it doesn't appear to be separate but it's about 20 pages in. COMMISSIONER: Is it page 1 of 4? READ: Yes, your Honour. COMMISSIONER: Where should I look at that? READ: Page 2 of 4, the inspection details of 7 December. The summary of the inspector's observations, "I observed scaffolding erected at the front of a double storey residential building under construction and multiple parts of the components ..(not transcribable).. from the scaffolding, approximately 3 to 4 metres to the ground, where a person could fall. I spoke to Mr Visscher who said he was the owner builder. He had engaged workers contractors in the past and he intended to do so in the future." Over the page, on page 3 of 4 of the inspection report, is a photograph of the inspector's observations when he attended the site, which showed, in his view, the deficiencies in the scaffolding and gave rise to the need to issue the notice. The prohibition notice. is the document immediately following the inspection report. That, as the Commission will be aware, requires the formation of a reasonable belief and in the box on that document, the basis of the inspector's belief is workers, other persons, may be exposed to serious risk as there is no system in place to prevent a person falling approximately 3 or 4 metres from the upper level of the scaffolding. The same distance recorded in the inspection report. The report giving rise to the attendance of the inspector at the site on 7 December has nothing to do with the issue of the prohibition notice. COMMISSIONER: Sorry, say that again? READ: The report that gave rise to the attendance of the inspector on 7 December cannot be relevant in circumstance to the issue of the notice in the circumstances where the document expressly says that it was issued based on his observations and not having regard to any other matters. COMMISSIONER: Well, these photographs were apparently considered by the inspector and I require them to be produced to Mr Visscher. READ: Well, it would be - can I say something more about that, Commissioner, before you make that ruling, just so that I can-- COMMISSIONER: I thought I just did. But I'll hear you. READ: I just put it on the record, Commissioner, because, in my submission, it squarely falls within that scope of the circumstantial document that will enable the applicant to readily identify the identity of the requester and, in those circumstances-- COMMISSIONER: You say this could have been taken by anybody? READ: Well, the issue is - well, can I take your Honour then - just hold onto that point to Mr Visscher's affidavit, the supplementary affidavit I believe it is. I'll just find the relevant reference. COMMISSIONER: What date is this affidavit? READ: It's the affidavit of the 24 March 2021. COMMISSIONER: Yes, I have that. READ: Can I ask your Honour to look at paragraph 46 of that affidavit, or from paragraph 44 to paragraph 46, on page 12, to attempt to make my point concerning the circumstantial nature of the evidence. COMMISSIONER: Just give me the paragraphs again. READ: Forty-four to 46. COMMISSIONER: Forty-four is a conversation he's having with his SafeWork inspector. READ: Yes, your Honour, paragraph 46 is really the paragraph I wish to draw your attention to. It goes to your Honour's comment about the photos could have been taken from anywhere. COMMISSIONER: Aren't we really just boxing at shadows here? Really. READ: It's a matter of public interest, your Honour, that this information isn't disclosed. I understand the practicality of dealing with the matter. COMMISSIONER: He's named people all through this affidavit. READ: Without, your Honour, any confirmation or evidence to support the identity of the requester or indeed there's elements of-- COMMISSIONER: I'm not requiring you to do that. I'm upholding your claim not to disclose the identity of the requester, but these photos don't do that. READ: Well, I cannot - my instructions are, your Honour, that they do and it will be readily apparent from disclosure of those photographs who the person who made the complaint was. COMMISSIONER: I require them to be produced."
We respectfully disagree with the Commissioner's factual findings in respect of the Photographs. We accept that they do not directly identify the Requestor. However, to again adopt the terminology in ASIC v P Dawson Nominees, when combined with information in another document or the reader's background knowledge, the Photographs may reveal the identity of the Requestor, or at least give rise to a strong suspicion as to their identity. We do not consider that it was reasonably open on the evidence for the Commission to find otherwise.
It follows that to the extent that it refers to the Photographs, ground H(b) of the Appeal is upheld.

Leave to cross-appeal

Mr Visscher's submissions on leave to appeal included the following: "1. The Commissioner's decision is attended with appealable error to the effect of denying procedural fairness to a litigant party in that he [is] denied access to documents, without redactions, produced in answer to an authorized [sic] Notice to Produce. 2. Production of documents in accordance with UCPR Part 34, Notice to Produce, is an integral function of the administration of justice. Central to that function is the requirement that, in accordance with the rules and the relevant authorities, documents are produced in original clean form, or otherwise with leave of the Commission or claim of privilege. … 4. The Notice to [Produce] was approved by Order of a Commissioner. The redaction of documents in purported compliance with the Notice is not a matter of right and only permitted with leave of the Commission. The redactions constitute a contempt of the Commission within the meaning of s 180 of the IR Act and tends to undermine public confidence in the administration of justice. … 8. The unredacted documents will show that the 'informer' made an untrue accusation against the cross-appellant within the meaning of s 314 of the Crimes Act 1900 [NSW]. 9. Access to the unredacted documents will assist the cross-appellant to establish that Safe-Work [sic] knew of the untrue accusation (scaffolding having fallen down) and covered up the commission of a crime by redacting documents and diverting attention away from the issue of scaffolding having fallen down. It did this by introducing a new 'replacement issue' of its own creation; the issue of 'working at an unsafe height with no protection'. 10. The cover up of crime is relevant in these proceedings for the reason of bringing into question an Inspector's reasonable belief and the issuing of a Prohibition Notice. … … 13. Commissioner [Murphy] considered s 271 of the WHS Act operating to protect the identity of the 'informer'. In so doing he erred by misdirecting himself in the application of law."
We wish to emphasise at the outset that we are not persuaded to afford any weight to Mr Visscher's contentions that the Requestor engaged in a criminal act and that, in issuing the Prohibition Notice and redacting the Documents, SafeWork NSW was colluding with them to conceal that crime.
Were we to have regard only to the reasons for leave to appeal set out in the Cross-Appeal and Mr Visscher's submissions, we would not be persuaded to grant leave to appeal. There is some merit to Mr Visscher's argument that Murphy C incorrectly regarded s 271 of the WHS Act as protecting the identity of the Requestor. Of itself, however, we do not consider that any error in this regard would have warranted leave to cross-appeal.
However, common issues arise under the Appeal and the Cross-Appeal. This is to be seen in the following exchange between the Chief Commissioner and Mr Latham: [21] "CONSTANT CC: Sure, and I'm happy to follow through with where I get to with the cross‑appeal and the leave question, that little portion of it. Maybe I'm completely off the rails here, but if I go to the cross‑appeal at (a) and (b), if you are right in the appeal, isn't it potentially (a) and (b) are part of the same question? I'm happy to be wrong. You can explain to me why I'm wrong. That's what I'm asking you to do. LATHAM: I'm always wary of that sort of invitation. Were you looking at the cross‑appeal? CONSTANT CC: Cross‑appeal, at F, (a) and (b). LATHAM: Could I just have one moment. … … LATHAM: Thank you, Chief Commissioner. Chief Commissioner, I'm sorry I took so long to find the document, but the answer to the question was yes. We accept that leave would be granted in relation to those matters. CONSTANT CC: Thank you. LATHAM: Sorry, we support the grant of leave in relation to those matters by the bench. We're not saying that we've got the right to grant leave. CONSTANT CC: Thank you. …"
In light of the position taken by SafeWork NSW, we have determined on balance to grant Mr Visscher leave to bring the Cross-Appeal.

Grounds of cross-appeal

The first ground of cross-appeal on which Mr Visscher relied - namely that Murphy C erred "in failing to apply the proper standard for the presentation of documents produced under UCPR Part 34" - can be disposed of relatively quickly.
Leaving aside allegations of impropriety and criminality, the gravamen of Mr Visscher's position is that the redactions made by SafeWork NSW to the documents sought under the notice to produce "were unlawful for the reason that they were not subject to a claim of privilege and done without leave of the Commission". [22] Mr Visscher drew our attention to In the matter of Prismex Technologies Pty Limited; Colin Lindsay Taggert v John Matyear [2013] NSWSC 278 and Grace v Grace (No 8) [2014] NSWSC 419 in support of this proposition.
In Prismex Technologies Brereton J observed: "5. As to the redaction, I have on many occasions indicated that those who redact documents produced pursuant to a notice or tendered as evidence, without the leave of the court embark on a perilous course. Redaction except where made as a matter of a claim of privilege is not a matter of right, but something permitted only with the court's leave." (Emphasis added)
We have already determined that public interest immunity may attach to documents that might disclose the identity of individuals reporting safety concerns to SafeWork NSW. In making redactions to the Documents that it was required to produce, SafeWork NSW was making a "claim of privilege". Commissioner Murphy upheld that claim other than in respect of the Relevant Redactions. It does not follow that the redactions were "unlawful".
We further observe that Pt 34 of the UCPR does not impose rigid and inviolable obligations on the Commission in the exercise of its jurisdiction. Section 162 of the IR Act allows the Commission, subject to the Act, to determine its own procedure. Even were we to be satisfied that the redactions to the Documents contravened Pt 34 of the UCPR, and we are not, there is nothing in the approach adopted by Murphy C that was inconsistent with his powers and discretion under the Act.
It is also relevant that at the hearing on 7 April 2021 Mr Visscher made no demur to the Commissioner maintaining the redactions other than the Relevant Redactions. He accepted at one point that he did not oppose the contact details remaining redacted. He only sought to challenge the Relevant Redactions.
We find that Mr Visscher has failed to establish ground H(a) of the Cross-Appeal.
The second ground of the Cross-Appeal contends that Murphy C "erred in failing to order the production of documents listed [in] the Notice of Motion, filed 12 February 2021". While it is not apparent on the face of the Cross-Appeal, the essence of the challenge to the Decision is that the Commissioner erred in failing to order the production of documents without redaction.
In determining this aspect of the Cross-Appeal, we have regard to our findings on the Appeal set out at [101], [115] and [117] above.
There is no controversy that the redactions to the Documents were made with a view to protecting the identity of the Requestor. Given our earlier findings regarding the attachment of public interest immunity to the Documents, the matter for determination, drawn from Alister v The Queen (see [96] above), is "whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates". While he has not done so directly, Mr Visscher must be taken to be asserting that Murphy C erred in permitting some of the redactions to the Documents to remain.
Mr Visscher submitted that the public interest in facilitating a just result in the litigation would outweigh the public interest in avoiding damage from the production of the Documents (although he disputed that any such damage would flow). In his Notice of Contentions, Mr Visscher set out at some length the forensic value that he considered the unredacted Documents would have to the arguments he sought to advance in the substantive proceedings. We do not propose to traverse all of those arguments.
We are not persuaded that the determination of the external review proceedings requires Mr Visscher to know the identity of the Requestor. At [72] above we identified the issues most directly arising under the application for external review. None of these require the identification of the Requestor. To the extent that the other theories posited, and accusations made, by Mr Visscher may call into question the Requestor's role in events, we do not consider that they give rise to a sufficient interest to override the public interest in maintaining the Requestor's anonymity.
As to the forensic relevance of the Photographs, in his Notice of Contentions Mr Visscher drew our attention to submissions he had filed in the proceedings below on 24 February 2021. In those submissions Mr Visscher stated that the Photographs were relevant to show: 1. the progress of work on the site, which would give an indication of when the Photographs were taken; and 2. the precautions used by him to prevent falling, which would rebut Mr Fripp's claim that he had a reasonable belief that the scaffolding posed an imminent risk of harm.
It is not apparent that the Photographs were in any way relevant to Mr Fripp's decision to issue the Prohibition Notice. They were not referred to in the Prohibition Notice or in an inspection report completed by Mr Fripp following his attendance at the site on 7 December 2020.
Further, the transcript of the conversation between Mr Visscher and Mr Fripp that day, referred to at [35] above and tendered into evidence by Mr Visscher, records the following exchange: "TV: Yeah, if I do that there'll be someone taking my photograph. WF: Yeah, fair enough, but even then it still doesn't matter 'cause [sic] I don't know when and where the photographs were taken, it could have been taken last week. TV: They are probably dated you know. WF: Yeah. But we can't use them. Those photographs that we do have, I can't use them against you. I need to come and gather my own evidence."
On the evidence, we fail to see how the Photographs could have any forensic weight in respect of the matters requiring determination in the external review. That review will require an assessment as to whether there was a proper basis for Mr Fripp to invoke s 195 of the WHS Act as at 7 December 2020. The state of the property at some indeterminate earlier time is of no apparent relevance.
We find that Mr Visscher has failed to establish ground H(b) of the Cross-Appeal.

Orders

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.

Endnotes

Outline of Submissions by the Cross-Respondent as to the Cross-Appeal, 18 August 2021 at par 14
ibid. at par 13
Affidavit of Warren Fripp, 23 September 2021, Annexure D
Tcpt, 29 November 2021, p 51(48-49)
Outline of submissions by the Appellant/Cross-Respondent on the question of jurisdiction, 27 September 2021
Tcpt, 29 November 2021, p 46(48-49)
ibid., pp 52(39)-53(27)
Applicant/Cross-Appellant's Order 2 Outline of Submission, 11 October 2021
ibid. at par 99
ibid. at par 97
See also the discussion of the Full Court at [11]-[20]
Rogers v Home Secretary [1973] AC 388. See Young at [151]-[157]
D v National Society for the Prevention of Cruelty to Children [1978] AC 171. See Young at [158]-[166]
ASIC v P Dawson Nominees
Finch v Grieve (1991) 22 NSWLR 578
Legal Services Commission v Trotter (1990) 54 SASR 74. In this case, Cox J, with whom King CJ agreed, did not definitively find that public interest immunity extended to the Legal Services Commission. However, his Honour stated that "a plausible argument" could be made out to that effect and that we was "willing to assume the correctness of that proposition for the purpose of this case": at 82.
Respondent's Submission Refusal of Leave, 5 May 2021
Decision, p 4(10-39)
Decision, p 6(10). See also p 2(40)
ibid., pp 5(4)-6(8)
ibid., pp 7(23)-8(1)
Tcpt, 10 September 2021, p 18(1)-19(4) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2021

Occupational Health and Safety Act 1985(Vic)s 22

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