Visscher v SafeWork NSW - [2024] NSWIRComm 1038 - NSWIRComm 2024 case summary — Zoe

NSWNSWIRComm

Visscher v SafeWork NSW

[2024] NSWIRComm 1038

Industrial Relations Commission (NSW)|2024-06-04

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2024-06-04

Catchwords

[2003] NSWIRComm 404 Hamod v State of New South Wales and Anor [2011] NSWCA 375 Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263
Visscher v SafeWork NSW (No 2) [2021] NSWIRComm 1099 Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association (2022) 320 IR 249

Source

Original judgment source is linked above.

Catchwords

[2003] NSWIRComm 404 Hamod v State of New South Wales and Anor [2011] NSWCA 375 Hosemans v Commissioner of Police (No 4) (2005) 150 IR 263Visscher v SafeWork NSW (No 2) [2021] NSWIRComm 1099 Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association (2022) 320 IR 249

Judgment (24 paragraphs)

[1]

DECISION

Timothy Visscher has applied for leave to appeal and, if leave is granted, to appeal the decision of Commissioner McDonald in Visscher v SafeWork NSW [2024] NSWIRComm 1012 ("Decision"). In the Decision, the Commissioner dismissed an application made by Ms Visscher pursuant to s 229 of the Work Health and Safety Act 2011 ("WHS Act") for external review of a decision made to issue him with a prohibition notice under s 195 of the WHS Act.
We have determined to refuse Mr Visscher leave to appeal. Our reasons follow.

[2]

Mr Visscher was self-represented

Mr Visscher was self-represented. We are conscious of our obligations in respect of an unrepresented litigant, and were guided by the observations of the Court of Appeal in Hamod v State of New South Wales and Anor [2011] NSWCA 375 at [309]-[313] including that: 1. courts have an overriding duty to ensure that a trial is fair, which entails ensuring that the trial is conducted fairly and in accordance with law. In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented; 2. the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties; and 3. it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant.

[3]

Background

For present purposes, the factual context to these proceedings can be briefly stated.
Mr Visscher is the owner-builder of a residential property at Catherine Hill Bay in New South Wales. 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 Prohibition Notice contained a statement that Mr Fripp reasonably believed that an activity may occur at the site that would involve a serious risk to the health and safety of a person emanating from an imminent exposure to a hazard, which was likely to contravene s 19 of the WHS Act and reg 78 of the Work Health and Safety Regulation 2017. The basis for that belief was stated to be that "persons may be exposed to a serious risk to their health or safety as there is no system in place to prevent a person falling approximately 3-4 metres from the upper level or scaffolding to the ground". [1]
The effect of the Prohibition Notice was to requires Mr Visscher to stop working on the scaffolding or upper-level balcony until an inspector was satisfied that the risk identified in the Prohibition Notice had been remedied.
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, pursuant to s 229 of the WHS Act, seeking an external review of the decision to issue the Prohibition Notice.
That application set in train a process which involved hearings before the Commission (including the Full Bench), the Supreme Court and the Court of Appeal, resulting in eight published decisions, including and culminating in the Decision. The history of the litigation is traversed at [21]-[55] of the Decision. It is not necessary to reproduce those passages.

[4]

The Decision

In the Decision, the Commissioner addressed the case before her in two "parts". The first concerned the question as to whether s 195 of the WHS Act empowered Mr Fripp to issue Mr Visscher with a prohibition notice, in the particular circumstances of Mr Visscher's case. In broad overview, Mr Visscher contended that "as an owner-builder and the only person who had worked on the site for some months and as the only person who would be working at the site for at least six months, he was not subject to any provisions of the WHS Act" (Decision at [4]).
Commissioner McDonald traversed the relevant provisions of the WHS Act. She outlined the controversy before her in these terms: "119. As the Full Bench also identified (at [47]), whether the Inspector was empowered to issue a prohibition notice to Mr Visscher at all (assuming he held the requisite belief) depends on whether activity was taking place, or may take place, at a workplace. As I recorded at [8] above, 'workplace' is defined in s 8 of the WHS Act as being a 'a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.' … 120. If Mr Visscher is a PCBU, he may also be a worker due to s 7(3) which expressly provides that the PCBU is also a worker if the person is an individual who carries out work in that business or undertaking. If he is a worker the site will be a workplace and the Inspector had the power to issue the Prohibition Notice, provided the other prerequisites were satisfied. 121. As the above factual account confirms, Mr Visscher carried out work at the site and intended to carry out further work at the site. There is no real debate about that. Rather the debate is whether that work was carried out for an undertaking. Plainly it was not work carried out for a business and SafeWork did not contend that it was. Whether the construction project upon which Mr Visscher was working at the site was an undertaking has to be determined in order to resolve both whether he was a PCBU and then whether, as a PCBU he was an 'individual who carries out work in that … undertaking' such that he is deemed to be a worker. The term 'undertaking' is not defined in the WHS Act. 122. Mr Visscher submitted that the work he was doing building his dwelling was not an 'undertaking' within the meaning of the [sic] ss 5 and 7. He accepted however, that when he engaged other people to work on the building he was conducting an undertaking." (Italics in original)
At [127]-[132] of the Decision, Commissioner McDonald explored the arguments advanced by Mr Visscher as to the meaning to be given to the word "undertaking" in ss 5 and 7 of the WHS Act. At [131] she expressed her agreement with Mr Visscher "to the extent that an undertaking must have some characteristic in common with or which makes it similar or comparable to, a business". At [132] the Commissioner also accepted Mr Visscher's submissions that "in construing the meaning of the word 'undertaking' consideration must be given to the context in which the word is used" including the general purpose and policy of a provision.
The Commissioner went on to determine (at [143]-[146]) that: 1. the construction of the dwelling was an "undertaking"; 2. Mr Visscher was consequently a "person conducting a business or undertaking" ("PCBU") within the meaning of ss 5 and 7 of the WHS Act; 3. Mr Visscher was a "worker" pursuant to s 7(3) of the WHS Act; 4. the building site was consequently a "workplace" within the meaning of s 195 of the WHS Act; and 5. Mr Fripp had the power to issue the Prohibition Notice "provided the other prerequisites [of s 195] were satisfied".
The second "part" of the Commissioner's consideration related to the other requirements of s 195. The Commissioner observed at [150] that s 195 "only applies and an Inspector can therefore only issue a direction prohibiting the carrying on of an activity, if the inspector reasonably believes that an activity of the kind described in s 195(1) (a) or (b) is occurring or may occur" (italics in original). The Commissioner addressed Mr Visscher's contention that Mr Fripp could not have formed the requisite "reasonable belief". After exploring the evidence and submissions before her on the matter, the Commissioner rejected that contention.
The Commissioner concluded as follows: "165. Mr Visscher has not succeeded in establishing that Inspector Fripp did not have the power to issue him with a prohibition notice. Mr Visscher's construction site at Catherine Hill Bay is a workplace within the meaning of s 195, by reason of the fact that it is a place where work is carried out for an undertaking. The Inspector formed a reasonable belief, based on the objectively established facts, that an activity may occur at the workplace, naming [sic - namely] working on the scaffolding or the upper level balcony to complete a partially completed residential building, 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, namely the risk of falling from the scaffold as there is no system in place to prevent a person falling from the upper level of the scaffolding to the ground. The reasonableness of that belief is borne out by the subsequent admission by Mr Visscher that he had intended to clean the underside of the balcony, and the only way he could do that was by accessing the scaffold. 166. In the circumstances the external review must be dismissed. Pursuant to s 229(4) I confirm the internal review decision of Jim Allison dated 24 December 2020 which confirmed the decision of Inspector Fripp to issue the Prohibition Notice. The internal reviewer was correct in holding that '[a]n owner builder is engaged in an "undertaking" which in this matter is the construction of a residence' and that s 195 was engaged. … 167. I make the following orders: (1) The external review is dismissed. (2) The internal review decision of Jim Allison dated 24 December 2020 confirming the decision of Inspector Fripp to issue the Prohibition Notice, is confirmed."

[5]

The grounds on which Mr Visscher relies

Mr Visscher moved on an Amended Application for Leave to Appeal and Appeal filed on 12 April 2024 ("Application"). The Application is brought pursuant to s 187 of the Industrial Relations Act 1996 ("IR Act").
On the question of leave to appeal, the Application stated: "REASONS WHY LEAVE TO APPEAL SHOULD BE GRANTED 1 The matters are of such public importance with regard to the administration of justice, questions of law concerning the proper construction of statutory provisions and correction of error in judicial proceedings, that it is the public interest that leave should be granted. 2 As a matter of procedural fairness, the Appellant seeks leave to file fresh evidence in rebuttal of the evidence of a key witness for the Respondent. A Notice of Motion of this matter is to be filed. 3 Consequential to the said evidence of a key witness, the Appellant has suffered a substantial miscarriage of justice for the reason that the said evidence is false. 4 Leave to file the said fresh evidence in rebuttal is likely to result in a different decision in favour of the Appellant. 5 As a matter of procedural fairness, the Appellant seeks leave to file new evidence of the transcript of the hearing before the Full Bench, dated 29 November 2021, in the matter of Visscher v SafeWork NSW, 2021/123596 - 2021/136519. A Notice of Motion of this matter is to be filed. 6 Leave to file the said new evidence is likely to result in a different decision in favour of the Appellant. 7 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. 8 The appeal seeks to address errors of questions of law. 9 The appeal seeks to address errors of law, findings of the Commissioner not reasonably open on the evidence. 10 The appeal seeks to challenge the decision of the Commissioner with regard to the question of reasonable belief under s 195 of the WHS Act. 11 The appeal seeks to claim a denial of procedural fairness. 12 The decision below is a precedent affecting jurisdictions nationwide (save Victoria) with the same or similar legislation to the WHS Act. With regard to the above, the Full Bench may give guidance as to future matters."
The Application contained 16 grounds of appeal. Two of these (9 and 14) were "withdrawn" by Mr Visscher. [2] The grounds that he pressed ("Grounds") were set out in the Application as follows: "1. A question of law. Was the Commissioner below correct in finding that an individual constructing a dwelling pursuant to an owner-builder permit is conducting an 'undertaking' within the meaning of that word in the phrase 'person conducting a business or undertaking' in ss 5 and 7 of the Work Health and Safety Act 2011 [NSW] ('WHS Act')? … 2 The Commissioner erred by providing insufficient reasons for considering 'that the construction of a dwelling pursuant to an owner-builder permit, ... is sufficiently similar to or comparable with, a business, or has attributes that otherwise indicate that the legislature intended that it would constitute an 'undertaking' within the meaning of ss 5 and 7 of the WHS Act.' [143] 3 A question of law. The Commissioner below asked the wrong question; namely, whether by virtue of a person constructing a dwelling pursuant to an owner-builder permit that person is a person conducting an 'undertaking' withing the meaning of that word in s 5 of the Work Health and Safety Act 2011 [NSW]… … 4. A question of law. Did the Commissioner below deny the Appellant procedural fairness by giving him notice at the hearing that, with regard to his submissions and transcripts in other proceedings, they were hearsay and would not be allowed, and that the hearing would be conducted in adherence with the rules of evidence as much as possible. (T21/5-14 to 21) … 5. A question of law. Did the Commissioner below deny the Appellant procedural fairness by ruling as irrelevant the evidence of the transcript of the Full Bench hearing, 21 November 2021. (T21/4-19 to 6-38). … 6. A question of law. Whether the Appellant was denied procedural fairness by being denied an opportunity to adduce rebuttal evidence against that of a key witness for the Respondent; namely, the evidence of a SafeWork Inspector Mr Fripp, given during cross examination. (T22/13-14 to 22-37) … 7. The Commissioner erred in law by denying procedural fairness; namely, conducting the hearing on the basis of not allowing the Appellant to rely on the transcript of evidence of a key witness. The evidence was previously given at a hearing before the Full Bench of the IRC concerning reasonable belief under s 195 of the WHS Act. … 8. The Commissioner erred by engaging [in] irrational or illogical reasoning, against the evidence and the weight of evidence, to note that it is possible for an adult to stand on the outermost part of the scaffold [82] … … 10. The Commissioner erred by finding that the Inspector held a reasonable belief within the meaning of s 195 of the WHS Act. That finding is against the evidence and the weight of evidence. … 11. The Commissioner erred by relying on unsafe evidence in finding as follows: In circumstances where a scaffold was erected at the front of the house, which could be easily accessed, it was entirely reasonable for the Inspector to form the view that 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. [153] … 12. The Commissioner below erred by finding that the Appellant had intended to use the scaffolding later on the day of 7 December (the day an Inspector issued a Prohibition Notice), or very shortly thereafter, to clean up adhesive which had dripped from the left side of the decking overlapping the front edge of the balcony. [103] … 13. The Commissioner erred by engaging irrational or illogical reasoning by finding as follows: 'However, I consider that the mere existence of the scaffold at the front of a partially completed dwelling objectively indicated that the scaffold may be used in the future.' [157] … 15. The Commissioner erred by engaging irrational or illogical reasoning by finding as follows: It was reasonable for the Inspector to believe that Mr Visscher may access the scaffold, or the balcony, given the state of the construction, and the reasonableness of his belief was subsequently borne out by Mr Visscher telling the Inspector that he had intended to clean the adhesive from the underside of the balcony and complete the installation of decking on the inner side of the balcony. [160] … 16. The Commissioner erred by engaging in irrational or illogical reasoning in finding as follows: I do not accept that the Inspector 'encouraged' Mr Visscher to use the scaffold. [163]" (Reproduced verbatim)

[7]

The applications

The first application to adduce fresh evidence was in the Application, which stated as follows: "APPLICATION FOR LEAVE TO INTRODUCE FRESH EVIDENCE 1. With regard to the hearing of matter 2021/12730, Visscher v SafeWork NSW, before Commissioner McDonald on 21 and 22 November 2023, the administration of justice has been brought into disrepute and the Appellant has suffered a substantial miscarriage of justice. 2. With regard to challenging the decision of an Inspector from SafeWork, Mr Warren Fripp, to issue a Prohibition Notice, a major limb of the Appellant's case is that his scaffolding, the subject of the Prohibition Notice, was isolated in accordance with the hierarchy of control measures as set out in the 'Code of Practice - Construction Work'. 3. The thrust of that limb is his contention is that the scaffold was isolated on the basis of there being no stair or ladder access. 4. Mr Fripp gave evidence in cross-examination, inter alia, on the last hearing day to the effect that access to a balcony, and thence to the scaffolding under the balcony, was easily accessible by way of an internal stairway whereby one could walk up the stairway and then to the balcony and scaffold. 5. There was no prior notice given to the Appellant of Mr Fripp giving that evidence. 6. The Inspector's said evidence goes to his 'reasonable belief' in s 195 of the WHS Act. 7. The Inspector's said evidence is prejudicial to the Appellant's case as it was relied on by the Commissioner as a factor to dismiss the Appellant's application. 8. At the time of the Inspector giving the evidence above, the Commissioner informed the Appellant that he would not have an opportunity to produce evidence in rebuttal. 9. The proposed fresh evidence is probative of the fact that the Inspector's said evidence in cross-examination is false. The Inspector lied and he did perjure himself. 10. The proposed fresh evidence provides conclusive proof of the fact that it is impossible to walk from the said staircase to the balcony and scaffold. There are no floor joists or flooring in the about 4 metres distance between the stairs and the balcony and the 2 beams that purportedly may provide a connection cannot be walked on to the balcony. 11. The proposed fresh evidence provides conclusive proof of the fact that the Appellant informed the solicitor for SafeWork of the Inspector's lie (false evidence) and request that the solicitor inform the Commissioner urgently in order that he may not suffer an unfair decision. 12. The solicitor refused to do that. 13. The giving of false evidence by a duly appointed Inspector of a Government Agency (SafeWork) and the failure of the paramount duty of a solicitor, an Officer of the Court, to urgently bring the matter to the attention of the Commissioner, brings the administration of justice into disrepute. 14. In order to correct the Appellant having suffered a substantial miscarriage of justice, leave to introduce, properly consider and deal with the fresh evidence should lie. The Full Bench should grant leave to the Appellant to file his affidavit; namely, the affidavit of Timothy Visscher, sworn 19 March 2024, with annexures: 'A' and 'B'. 2 x photographs showing the stairway and purported access by internal stairway to a balcony and scaffold, taken on 23 November 2023, but showing things as they were at the time that the Inspector visited the site on 7 December 2020. All items in the photographs have remained undisturbed. 'C'. Correspondence between the Appellant and the Respondent's solicitor after the close of hearing, and on the following day with copies of photographs and the solicitor's reply, refusing to write to the Commissioner. 'D'. Transcript of part of the said evidence in cross-examination."
Mr Visscher did not seek leave to read his affidavit sworn on 19 March 2024, but instead sought to read an affidavit that he had sworn on 8 April 2024. In that affidavit, Mr Visscher set out the basis on which he contended that Mr Fripp's evidence before Commissioner McDonald - to the effect that "one could gain access to the said balcony and the said scaffolding by walking up a partially constructed internal stairway and walking to the balcony" (par 19 of the affidavit) - was incorrect. Annexed to the affidavit were photographs of the site, including the internal staircase, said to show the state of the construction as to the date of Mr Fripp's visit. The affidavit also contained what were effectively submissions as to why the Full Bench should accept the fresh evidence.
The second application to file fresh evidence was through a notice of motion filed by Mr Visscher on 5 April 2024, in which he sought an order to the effect that he be granted leave to adduce into evidence the transcript of the hearing before the Full Bench on 29 November 2021 in matters 2021/00123596 and 2021/00136519 ("Full Bench Transcript"). (For context, that hearing formed part of the proceedings which led to the decision of the Full Bench in SafeWork NSW v Visscher (No 3); Visscher v SafeWork NSW (No 2) [2021] NSWIRComm 1099.)
In support of the notice of motion, Mr Visscher sought leave to read an affidavit that he had sworn on 5 April 2024. The affidavit set out the basis on which Mr Visscher contended that the Full Bench Transcript ought to be introduced into evidence. In short, Mr Visscher deposed (in what were in effect submissions) that the transcript was inconsistent with Mr Fripp's evidence before Commissioner McDonald; that this called into question whether Mr Fripp could have formed the requisite "reasonable belief" for the purposes of s 195 of the WHS Act; and that the new evidence, if properly considered, "may lead to a different decision in his favour". The Full Bench Transcript was attached to the affidavit.
SafeWork NSW opposed both of the applications.

[8]

The applicable legal principles

This is not the first time on which the Full Bench, in the context of this dispute, has had to determine an application to adduce fresh evidence. At an earlier stage of the matter, SafeWork NSW made such an application. In SafeWork NSW v Visscher [2021] NSWIRComm 1051 Commissioner Sloan, on delegation from the Full Bench, observed: "13. Section 191(1) of the Industrial Relations Act provides that an appeal to a Full Bench of the Commission is not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against. However, s 191(2) empowers the Full Bench to grant leave for a party to adduce further evidence if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against. … 15. In Akins v National Australia Bank (1994) 34 NSWLR 155 ('Akins') Clarke JA observed (at 160): '…Although it is not possible to formulate a test which should be applied in every case to determine whether or not special grounds exist there are well understood general principles upon which a determination is made. These principles require that, in general, three conditions need be met before fresh evidence can be admitted. These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.' 16. I have also had regard to the discussion in Electrical Contractors Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch and Anor (2003) 130 IR 284; [2003] NSWIRComm 404 at [67]-[86]. …"
We adopt those passages. In addition, we note the following passages from the Full Bench decision in Electrical Contractors Association of New South Wales v Electrical Trades Union of Australia, New South Wales Branch and Anor (2003) 130 IR 284; [2003] NSWIRComm 404: "83. We would also note the observations in Wilson v The Prothonotary [2000] NSWCA 23 at [47], where, having approved of the three pronged test in Akins, the Court of Appeal stated: The tests are general principles, or conditions applying to the generality of cases, but the statutory discretion is capable of being exercised even if the tests are not all satisfied although such an exercise might only occur in exceptional circumstances: Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 140 Similar observations were made in Textralian Enterprises Pty Ltd v Perpetual Trustees Victoria Ltd at [101]. 84. We would also note the observations of the Court of Appeal in Townsend v Townsend [2001] NSWCA 136, where, having adopted the principles in Akins, the Court stated (at [64]): These conditions are only guides, and special grounds may be made out in particular circumstances (Commonwealth Bank v Quade (1991) 178 CLR 134 at 140), but the public interest in the finality of litigation calls for some 'insistent demand of justice' (Council of the City of Greater Wollongong v Cowan (1955) 93 CLR 435 at 444)."

[9]

Consideration

Applying these principles, we were not persuaded that Mr Visscher had established that "special grounds" existed which warranted the grant of leave to adduce fresh evidence. Our primary reason for reaching this view was that, by reference to the conditions identified in Akins v National Australia Bank (1994) 34 NSWLR 155 ("Akins"), there was not a "high degree of probability" that the additional evidence would result in a different decision to that reached by Commissioner McDonald. Further in relation to the second application, the Full Bench Transcript was available for use, and was used, in the hearing before Commissioner McDonald, meaning that the first condition in Akins was not satisfied.
In relation to his first application (evidence as to the internal stairway), Mr Visscher contended in his oral submissions to the Full Bench: [3] "Now, had I been able to produce the rebuttal evidence, my submission is that the commissioner would have reached a different finding because central to her finding is that there was easy access to the scaffolding. So that can only be based on the inspector's evidence of being able to walk to the balcony. That's the only way easy access is possible." And later: [4] "So the entire evidence of Mr Fripp is central with regard to walking access to the balcony, and as I said earlier, if the commissioner had access to that rebuttal evidence, she would not have found that there was - most likely would not have found that there was easy access to the scaffolding, and that would have resulted in a different decision."
SafeWork NSW submitted that it was clear from the terms of the Decision that Mr Fripp's evidence regarding access to the balcony, and hence the scaffolding, was not "central to [the Commissioner's] finding", and that there were other bases on which the Commissioner could, and did, find that Mr Fripp had formed the requisite "reasonable belief". We accepted those submissions.
Commissioner McDonald observed in the Decision: "110. Although it was not mentioned in his affidavit, in cross examination Inspector Fripp stated that there was an internal stair allowing access to the balcony and from there one could gain access to the scaffolding. He did not take a photo of this internal stair and it is not visible in the Site Photo. Mr Visscher attempted to challenge the Inspector's evidence that access to the balcony was possible from the partially completed internal staircase. Ultimately, I posed the following question to Inspector Fripp which elicited the following response: Q: How did you know [you could walk from the top of the internal staircase to the balcony?]? Did you go inside the house, Mr Fripp? A: Yes, I was standing in that immediate vicinity. I did not walk up that staircase 'cause it was not safe to do so. But I could see that you could make access to the balcony 'cause there was a whole lot of equipment up there. So, one would carry that equipment up there. So, one would carry that equipment up there, unless you got a crane and craned it in, so I formed the belief that you could make access. 111. I accept that prior to issuing the verbal direction, by observing the equipment on the balcony, that the Inspector formed a belief that one way or other, access to the balcony, and from there the scaffolding, was possible. As it turns out such a belief was justified given Mr Visscher's later discussion with the Inspector about the work he had done and proposed to do on the balcony. I also accept that in arriving at his belief that access to the balcony was possible, the Inspector observed an internal stairway under construction and presumed that was the method by which access to the balcony was obtained. Whether the partially constructed stairway was in fact the method of access is not important. The Inspector formed a reasonable belief based on the equipment on the balcony that access to the balcony was possible." (Footnotes omitted)
There are three things in particular to note about those passages. First, the Commissioner recognised that Mr Fripp's evidence regarding the internal stairway was given for the first time in cross-examination. Second, she was aware that there was a controversy as to whether it was possible to access the balcony from the internal stairway. Third, and most significantly for present purposes, the Commissioner determined that the answer to that question was "not important" as there was another basis on which Mr Fripp formed his reasonable belief. This last point argued strongly against Mr Visscher's contention that the fresh evidence he sought leave to adduce "would have resulted in a different decision".
Further in relation to the last point, Commissioner McDonald also observed: "161. Mr Visscher contended that the only way to access the scaffold, in the absence of stairs or ladders, was to climb it on the outside, 'like a monkey'. Essentially Mr Visscher contended that the scaffold was isolated and so the impugned activity was not going to occur. I discussed this contention at [109] to [112]. I accept the Inspector's evidence that, based on his observation of equipment on the balcony, access to the balcony and from there the scaffolding, was possible. He also explained that persons could also climb the scaffolding using the horizontal pieces. He explained that to 'isolate' the scaffolding it ought to have been taped off with appropriate signage warning against any use of the scaffold."
At the hearing before the Full Bench, Mr Visscher conceded that he had climbed the scaffolding using the horizontal pieces. He stated, though, that it would not be possible to carry equipment to the balcony through that means without great difficulty, and for this purpose he had constructed a crane. Be that as it may, this was another factor that weighed against a finding that the fresh evidence would have had a high likelihood of resulting in a different outcome.
To the extent that the second application (seeking leave to adduce the Full Bench Transcript) was directed towards challenging Mr Fripp's evidence as to the internal stairway, it raises the same issues as dealt with immediately above.
Otherwise, Mr Visscher's submissions in respect of his second application could be summarised as follows: 1. he had sought to enter the Full Bench Transcript into evidence in the proceedings before Commissioner McDonald; 2. the Commissioner did not allow the Full Bench Transcript into evidence; 3. this wrongfooted Mr Visscher, who had to "reapproach how [he] was going to present [his] case while [he] was on [his] feet"; [5] 4. the Full Bench Transcript would reveal inconsistencies between the evidence given by Mr Fripp before the Full Bench and that he gave before Commissioner McDonald. This included evidence to the Full Bench to the effect that on the day he visited the site there were no workers exposed to imminent danger; 5. Mr Visscher did not have the presence of mind to put that matter to Mr Fripp at the hearing before Commissioner McDonald; 6. the Full Bench Transcript would have brought the credibility of Mr Fripp into question, which may have impacted on the finding of the Commissioner at [76] of the Decision that Mr Fripp "gave evidence honestly"; and 7. "had the [C]ommissioner taken the transcript into evidence, and particularly with the reply from the inspector that there was no one exposed or imminently exposed on the day, she might have reached a different decision". [6]
Having regard to the first condition in Akins, it is not controversial that the Full Bench Transcript was available to Mr Visscher in the proceedings before Commissioner McDonald. Not only did he seek to tender it into evidence, it is apparent from the transcript of those proceedings that he cross-examined Mr Fripp by reference to it. To that extent, the Full Bench Transcript is not "fresh evidence". Further, the application to adduce that evidence in these proceedings was pre-emptive of the arguments advanced by Mr Visscher in respect of Grounds 4 and 7 of the Application.
As to whether there was a "high degree of probability" that the Full Bench Transcript would lead to a different outcome, even Mr Visscher's submissions did not rise so high. His submissions were couched in the language of possibility ("may", "might"), not probability.
Further, Mr Visscher's contention that the Full Bench Transcript might have impacted on the Commissioner's assessment as to the credibility of Mr Fripp was largely conjecture. It assumed that the Commissioner would have drawn adverse inferences against Mr Fripp on the basis of the Full Bench Transcript alone, without particular matters having been put to him in cross-examination. That assumption is inconsistent with the approach that the Commissioner informed Mr Visscher that she intended to take during the course of the proceedings before her, as follows: [7] "Now, the transcript of that is hearsay, and whilst this Commission is not bound by the rules of evidence, by and large, we adhere to the rules of evidence as much as possible because they indicate essentially what is fair. Now, you are totally at liberty if you wish to put things to the inspector if you consider that his evidence, for instance, is inconsistent with something he might have said previously. You can perhaps take him to the transcript and show it to him and point out the inconsistency and see whether he agrees with you, and if he doesn't, you may wish to tender separately a part of the transcript to point out that inconsistency, okay? But otherwise, I'm not going to allow transcript of something that happened elsewhere because I need to hear directly here the evidence and in essentially, for the first time, okay? …"

[11]

Overview of the party's submissions on leave to appeal

Mr Visscher's written submissions on leave to appeal can be distilled to the following contentions: 1. The Commissioner erred in finding that the construction of a dwelling pursuant to an owner-builder permit is an "undertaking" within the meaning of ss 5 and 7 of the WHS Act. This is "a precedent decision with widespread practical application effecting [sic] all jurisdictions across Australia with the same or similar laws to the WHS Act" and the Full Bench "may give guidance as to future matters concerning the statutory construction of those words". [8] 2. The Commissioner erred in denying Mr Visscher procedural fairness by refusing him leave to file evidence to rebut the "surprise evidence" of Mr Fripp, [9] which resulted in the "the administration of justice being brought into disrepute by the Commissioner below relying on the false evidence of a key witness for the Respondent to find in favour of the Respondent". [10] This caused Mr Visscher to suffer "a substantial miscarriage of justice". [11] 3. Leave should be granted to address the appellable errors set out in the Application.
SafeWork NSW opposed the grant of leave to appeal. In summary, it submitted: 1. The Commissioner's finding that Mr Visscher was conducting an "undertaking" was a finding of fact that was open on the evidence. There is nothing in the Commissioner's reasoning warranting the intervention of the Full Bench. The grounds of appeal relating to that finding do not raise any substantial issue of principle or law. 2. The denial of procedural fairness alleged by Mr Visscher in being refused leave to lead rebuttal evidence is based on a misunderstanding of the Decision and is not reasonably arguable. The Commissioner did not make a finding that the access to scaffolding via the internal staircase was in fact possible. The Commissioner found that Mr Fripp formed a reasonable belief that access to the balcony was possible having observed equipment on the balcony. This finding "aligns with authorities relating to the standard necessary to prove 'reasonable belief'". [12]

[13]

Grounds 1 and 3

Grounds 1 and 3 challenge the finding of Commissioner McDonald that, as an owner-builder, Mr Visscher was conducting an "undertaking" within the meaning of ss 5 and 7 of the WHS Act at the time of Mr Fripp's visit to the site on 7 December 2020. To put these Grounds in context, in the Decision the Commissioner held as follows: "138. In New South Wales it is illegal to construct a dwelling without either holding a contractor licence or an owner-builder permit: ss 12 and 32 of the Home Building Act 1989 (NSW). SafeWork tendered various documents published by NSW Fair Trading regarding Owner-builders. One document headed 'Owner Builder permits' has a section at the start headed 'Key information' and which reads as follows: … 139. Another Fair Trading document headed 'Working as an owner-builder' contains the following section: … 140. Whether these documents accurately set out the obligations of an owner-builder is unimportant. Plainly they do not substitute for the actual legislative provisions which stipulate the alleged responsibilities. What the documents do show however, are three important things: (1) an owner-builder assumes the role of a licensed builder, that is, a person who unarguably would be a PCBU, as by carrying on a trade they would be conducting a business; (2) undertaking the construction of a dwelling pursuant to an owner-builder permit involves elements of organisation and systems - to a very high degree and the legislature plainly regards it as a serious activity requiring considerable regulation; and (3) the construction of a dwelling by an owner-builder involves 'work' just as it would if a licensed builder were undertaking the task. 141. Given the above, it cannot be said that the construction of a dwelling is for a private or domestic purpose in the sense used in the second reading speech. This view is consistent with the approach taken by SafeWork Australia in its Interpretive Guideline under the heading 'What is not a "business" or "undertaking"': … 142. The building of a residential property is a major and important task - it is not ad hoc home maintenance or repair. 143. In the premises I consider that the construction of a dwelling pursuant to an owner-builder permit, whether by the permit holder doing the work themselves or by engaging and supervising others to do the work, is sufficiently similar to or comparable with, a business, or has attributes that otherwise indicate that the legislature intended that it would constitute an 'undertaking' within the meaning of ss 5 and 7 of the WHS Act. 144. I reject Mr Visscher's argument that when he was working on the building alone he was not an undertaking and I respectfully agree with Schmidt AJ's remarks in the Supreme Court decision at [117]-[119], which consistent with Farah Constructions Pty Ltd v Say-Dee Pty Ltd, I should follow: 117. There is nothing in the statutory scheme which would permit the conclusion which Mr Visscher urged. Namely, that at times when he did not engage others to perform work on site, he was not conducting an undertaking, not even when he was working there himself. That is both quite illogical and contrary to the scheme and its objects. 118. As the Full Bench observed, whether or not someone is conducting an undertaking is a question of fact. A dispute over such a matter must be resolved logically, in light of all the evidence. Thus if the evidence established that at the time a notice was issued the owner/builder had sold the property, without the building being completed, it is difficult to see that it could be concluded that the required undertaking was still being pursued by the owner/builder. 119. But in this case, there was no issue that Mr Visscher was still building… 145. Having found that the construction of the dwelling pursuant to an owner-builder permit was an 'undertaking', I also conclude that Mr Visscher was a PCBU within the meaning of s 5. For completeness I do not consider that the exclusion in s 5(4) applies as Mr Visscher was not engaged solely as a worker in, or as an officer of, the undertaking. He was more than just a worker - he was the owner of the land and the building being constructed on it and crucially, he was also the holder of the permit that enabled the work on the site to proceed. 146. Having found that Mr Visscher was a PCBU I also find that he is a worker pursuant to s 7(3). Mr Visscher was an individual who carried out work in the undertaking. Having found that Mr Visscher is a worker, the building site at Catherine Bay Hill was a place where Mr Visscher went while at work and any in event, was a place where work was carried out and was being carried out for an undertaking. As the place the Inspector visited was a workplace, the Inspector had the power to issue the Prohibition Notice, provided the other prerequisites were satisfied." (Italics in original)
Mr Visscher submitted that: 1. whether he was a person conducting an "undertaking" on 7 December 2020 is a jurisdictional fact; 2. the establishment of a jurisdictional fact turns only on the proper construction of the legislation; 3. the WHS Act requires an analysis of the activity in question to determine if an undertaking is being conducted, with each case turning on its facts; 4. the Commissioner improperly took into account material extrinsic to the WHS Act (as identified at [138]-[141] of the Decision) to determine that he was conducting an undertaking. This material was of general application, and not confined to his own circumstances, such that the Commissioner's analysis was conducted "without any consideration of each case turning on its own facts"; [13] 5. the effect of the Commission's finding is to establish a "rule" [14] or an "objective jurisdictional fact" [15] that a person building a dwelling pursuant to an owner-builder permit is conducting an undertaking. Had Parliament intended to establish such a "rule" or "objective jurisdictional fact" it would have done so, but did not; and 6. in any event, the matters to which the Commissioner had regard do not support the finding that he was engaged in an undertaking.
As SafeWork NSW submitted, Grounds 1 and 3 conflate the issue of statutory interpretation of the meaning of "undertaking" in ss 5 and 7 of the WHS Act with the determination as to whether an owner-builder is carrying out an undertaking. The latter issue is a question of fact to be determined on the evidence. While SafeWork NSW agreed that the finding that a person is carrying out a business or undertaking is a jurisdictional fact that underpins the validity of the issuing of a prohibition notice, it submitted, correctly in our view, that the determination of that jurisdictional fact is neither a question of law nor a matter of statutory interpretation.
As stated at [15] above, Commissioner McDonald explored the arguments advanced by Mr Visscher as to the meaning to be given to the word "undertaking" in ss 5 and 7 of the WHS Act. She agreed with his arguments as to how the word "undertaking" was to be construed, both in the immediate context of ss 5 and 7, but also having regard to the general purpose and policy of the legislation. Those matters are not challenged on appeal.
What followed in the Decision was the Commissioner's consideration of Mr Visscher's submissions as to why he should not be regarded as conducting an undertaking. In doing so, the Commissioner recognised (at [137]) that "[e]ach case will turn on its own facts".
SafeWork NSW submitted: [16] "12. The Commissioner's inquiry as to whether the evidence supported the existence of the jurisdictional fact naturally commenced with a broader analysis of the activity of constructing a dwelling pursuant to an Owner Builder permit in NSW, prior to turning to the specific matter raised by the appellant. This was relevant because the evidence before the Commissioner established, and it was not disputed, that the appellant was constructing a dwelling pursuant to an Owner Builder permit. 13. By adopting this approach, the Commissioner did not ask herself the 'wrong question', as asserted by the appellant in Ground 4 [sic - ground 3] of the Amended Application. To the contrary, the Commission would have fallen into error if the evidence relating to the obligations of Owner Builders in NSW had been disregarded. 14. It was open for the Commission to find on the evidence that the activity of building a dwelling pursuant to an Owner Builder permit in NSW was one that had characteristics that were sufficiently similar to, or comparable with, a business, or has attributes that that otherwise indicate the legislature intended it would constitute an 'undertaking.' This was a finding based on the evidence and discloses no appealable error." (Footnotes omitted, italics in original)
For the reasons set out above and having regard to the logic inherent in them, we accept those submissions. The finding of Commissioner McDonald that Mr Visscher was conducting an undertaking was reasonably open on the evidence before her. In this regard, we observe that in Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association Walton J identified (at [21(6)]) that the principles on leave to appeal include the following: "Mere contest as to findings of fact which might otherwise remain open on the evidence will generally, in the absence of other considerations, not attract leave: Box Valley Pty Ltd v Price (2000) 97 IR 484 at 484 [4] (Walton J, Vice-President, Hungerford J and Commissioner Cambridge). It must be kept in mind that the Full Bench should not interfere with findings of fact unless the Full Bench is of the opinion that they were not reasonably open on the evidence: Hussmann Australia Pty Ltd v Walker (1993) 31 NSWLR 189 at 201 (Hill J)."
Grounds 1 and 3 do not reveal appellable error in the Decision.

[14]

Ground 2

Ground 2 contends that Commissioner McDonald erred by providing insufficient reasons for her finding at [143] of the Decision.
The discussion above in respect of Grounds 1 and 3 largely suffices to dispose of this ground. The Commissioner's finding followed her analysis as to the statutory meaning of "undertaking" and her traversal of the evidence before her as to whether Mr Visscher was conducting an undertaking as defined.
In New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231 the Court of Appeal observed: "66. In the context of appellate review of the adequacy of reasons, the function of an appellate court is to determine not the optimal level of detail required in reasons for a decision but rather the minimum acceptable standard: Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48]… The standard is not one of perfection: Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233 at 255…"
In Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 McColl JA, with whom Macfarlan JA agreed, observed (at [152]) that a tribunal "is not expected to set out every consideration which passes through the decision-maker's mind, although some, and usually the most significant, will be expressly dealt with". In the same case, Emmett AJA observed (at [227]) that it is "not necessary for a decision-maker to expose every step in the chain of reasoning that leads to the conclusion".
We also have regard, without reproducing them, to the observations of the Full Bench in Redmond v Director General, NSW Department of Health, on behalf of the Ambulance Service of New South Wales [2012] NSWIRComm 147 at [30]-[40], [48] and [59]-[63], and in Charles v Northern New South Wales Local Health District [2016] NSWIRComm 8 at [22]-[23].
Having regard to these principles, and adopting a fair and proper reading of the Decision, we consider that Commissioner McDonald adequately set out the "chain of reasoning" that led her to conclude that Mr Visscher was conducting an undertaking. It follows that we are not persuaded that Ground 2 discloses appellable error.

[15]

Grounds 4, 5 and 7

Grounds 4 and 7 allege that Commissioner McDonald erred by denying Mr Visscher procedural fairness by refusing to accept the Full Bench Transcript into evidence. Ground 5 asserts that Mr Visscher was denied procedural fairness by "ruling as irrelevant" the Full Bench Transcript.
We have already dealt with many of the matters arising in respect of these Grounds at [26]-[27] and [38]-[42] above. To the extent that these Grounds assert that the Full Bench Transcript was relevant to the question of Mr Fripp's "reasonable belief", we repeat our earlier observations.
Ground 4 contends that Commissioner McDonald gave him notice that "his submissions and transcripts in other proceedings…were hearsay and would not be allowed". Ground 5 rests on the premise that Commissioner McDonald "ruled" that the Full Bench Transcript was "irrelevant". Ground 7 asserts that the Commissioner conducted the hearing "on the basis of not allowing [Mr Visscher] to rely on the transcript of a key witness". These are all false premises.
At [42] above, we reproduced an extract from the transcript of the proceedings before Commissioner McDonald. During the hearing before the Full Bench, that extract was the subject of the following exchange between Mr Visscher and the Full Bench: [17] "SLOAN C: Just so that I'm clear on this, I'm looking at p 183 of the court book, and I just want to be sure that I understand the effect of what the commissioner was there saying. … What I understood the commissioner to be saying was, the transcript is hearsay, she wasn't going to rely on that transcript to prove matters in contest before [her], that it was up to the parties to seek to demonstrate those matters on the evidence before her. If that evidence was inconsistent with what a witness might have said in other proceedings, the transcript could be used for the purposes of pointing out that inconsistency, that perhaps parts of the transcript relevant to that question might be tendered separately, but that otherwise, the transcript as a whole was not going to be accepted into evidence. Have I got that right? APPLICANT: Yes, you do. Yes."
In support of the Application, Mr Visscher submitted: [18] "The Commissioner informed the Appellant: 'It doesn't matter to me at all what [the Inspector] said at the Full Bench…' and 'I am utterly unconcerned with what [the Inspector] said at the Full Bench.'" (Square parentheses in original)
The Commissioner's statements have been taken out of context. The full exchange between the Commissioner and Mr Visscher was as follows: [19] "COMMISSIONER: Mr Visscher, I just explained that that's not helping me. If what you're trying to do-- APPLICANT: Sorry, yes. If I could-- COMMISSIONER: --is ask - is to establish that you said that he said to you that it was the conversations about engaging contractors which led him to believe it was going to be used, just put it to him now. It doesn't matter to me at all what he said at the Full Bench unless he says something now that is directly different to what he previously said. In which case, it may be relevant to take him to the earlier inconsistent statement. But until he makes that inconsistent statement, I am utterly unconcerned with what he said at the Full Bench." (Emphasis added)
The comments made by the Commissioner are consistent with those reproduced at [42] above. The effect of the Commissioner's ruling on the Full Bench Transcript was that it would not be accepted into evidence in its entirety as to the truth of its contents. However, it was made clear to Mr Visscher that he could rely on it to establish prior inconsistent statements and tender those parts of it which he said demonstrated the inconsistency. As we have previously observed, the transcript of the proceedings below reveals that Mr Visscher did in fact take Mr Fripp to the Ful Bench Transcript during cross-examination.
It follows that there is no substance to the contentions that Commissioner McDonald determined that the Full Bench Transcript "would not be allowed", that it was irrelevant or that Mr Visscher would not be allowed to rely on it.
For these reasons, we accept the following submissions made by SafeWork NSW: [20] "27. At the outset of the hearing the Commissioner carefully explained to the appellant in 'preliminary remarks' that the Full Bench transcript would not be helpful to her because she was hearing the matter 'essentially for the first time' and therefore needed to assess the evidence based on her observations, and not by reviewing past recordings. 28. The Commissioner informed the appellant on several occasions that the Full Bench transcript could be used by him for the purpose of pointing out any inconsistencies in the Inspector's testimony. The Commissioner invited the appellant to tender any parts of the document identified through his questioning of the Inspector said to be inconsistent with his evidence. … 30 To the extent that there was a limitation of the use of the evidence, this was a discretionary decision of the Commissioner. For the Full Bench to review this matter, the appellant would need to identify a House v King type error. The appellant has not pointed to any such error. 31. The appellant has failed to identify how the Commissioner's approach to the Full Bench transcript resulted in any procedural disadvantage to him. …" (Footnotes omitted, italics in original)
Grounds 4, 5 and 7 do not demonstrate appellable error in the Decision.

[16]

Grounds 6 and 11

Grounds 6 and 11 both rest on the fact that Mr Visscher was not permitted to call evidence to rebut that of Mr Fripp given under cross-examination that the internal staircase in the building might have provided access to the balcony, and from there to the scaffold. Many of the issues arising in respect of these Grounds have been canvassed in respect of Mr Visscher's first application to adduce fresh evidence at [24]-[25] and [32]-[37] above.
In Ground 6, Mr Visscher asserts that he was denied procedural fairness in not being permitted to adduce "rebuttal evidence" against that of Mr Fripp. He submitted that there was nothing in Mr Fripp's notebook or in his written evidence to the effect that "there was walking access to the balcony and thence the scaffold by way of an internal stairway". [21] He further submitted that that evidence had not been given in the earlier proceedings before the Full Bench. As such, the evidence was "unfairly prejudicial" to Mr Visscher and he "should have been afforded the opportunity to adduce rebuttal evidence". [22]
Ground 11 asserts that Commissioner McDonald erred in relying on "unsafe evidence" to find as follows: "153. …In circumstances where a scaffold was erected at the front of the house, which could be easily accessed, it was entirely reasonable for the Inspector to form the view that 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." (Italics in original)
Mr Visscher submitted that this finding, particularly that the scaffold "could be easily accessed", was significant as it "negatived" his submission below "that the scaffolding was isolated from access, and therefore [Mr Fripp] could not reasonably believe, pursuant to s 195 of the WHS Act, the matters set out in the Prohibition Notice". [23]
Mr Visscher further submitted that it was his right "to reply with evidence to contradict the case of an opponent"; [24] SafeWork NSW did not provide notice of Mr Fripp's evidence regarding the internal staircase; the Commissioner refused him an opportunity to contradict that evidence by way of evidence in rebuttal, constituting a "clear denial of procedural fairness"; [25] that as a result, the Commissioner only heard one side of the evidence; and consequently, the Commissioner's finding that the scaffold "could be easily accessed" was "unsafe". [26]
It is uncontroversial that during the hearing before Commissioner McDonald, Mr Visscher enquired as to whether he would have an opportunity to put on evidence to rebut that of Mr Fripp concerning access to the balcony via the internal staircase. The Commissioner informed him that he would not have that opportunity. The question which arises is whether this amounted to a denial of procedural fairness.
For the reasons canvassed above in respect of Mr Visscher's first application to adduce fresh evidence, we consider that the answer to that question must be "no". Commissioner McDonald made no finding that the internal staircase provided walking access to the balcony. She observed at [111] of the Decision that this had been Mr Fripp's presumption. She determined that whether or not that access was possible was "not important" as there were other bases on which Mr Fripp formed his "reasonable belief". It follows, as SafeWork NSW submitted, that there can have been no denial of procedural fairness arising from the Commissioner's indication that rebuttal evidence would not be permitted to address this matter.

[17]

Ground 8

Ground 8 asserts that the Commissioner erred "by engaging [in] irrational or illogical reasoning, against the evidence and the weight of evidence" by making the following observations at [82] of the Decision: "I also note that save for a small part of the outermost section of the wooden platform underneath the balcony, which Mr Visscher attested was about 100mm past the balcony structure, it would not have been possible for an adult to stand upright on the major part of the wooden platform as it was positioned too close to the balcony structure. Nevertheless, it may well have been possible to stand on the small outermost part, albeit very awkwardly and dangerously…"
Mr Visscher's written and oral submissions explored the dimensions of the "small outermost part" of the wooden platform. He contended that it would not be possible to stand on that section without falling off. He described the Commissioner's observations as "capricious, arbitrary or unreasonable", [27] calling into question whether Mr Fripp could have been found to have formed the requisite "reasonable belief".
Once again, Mr Visscher failed to place the Commissioner's comments in their full context. In its entirety, [82] of the Decision reads as follows: "82. According to Inspector Fripp and I accept, the first observation he made was 'scaffolding erected at the front of the property which had multiple missing parts and components, including missing handrails and mid-rails.' A photograph of the scaffold at the site which Inspector Fripp took was annexed to Inspector Fripp's affidavit and admitted into evidence (Site Photo). The Site Photo clearly shows scaffolding erected at the front of the house in an 'L' shape, with a wooden platform positioned on the scaffold directly underneath the upper-level balcony, as well as at least one wooden plank positioned diagonally across the wooden platform under the balcony to the other side of the 'L'. Further, the Site Photo clearly shows that save for one small section on the side of the wooden platform, where there is a horizontal rail approximately 50 cm above the wooden platform, there are no horizontal railings around the wooden platform or the horizontal plank at either hip or shoulder level. It is plain, even to the untrained eye, that there was nothing to stop a person falling from the scaffolding or for that matter, the balcony. I also note that save for a small part of the outermost section of the wooden platform underneath the balcony, which Mr Visscher attested was about 100mm past the balcony structure, it would not have been possible for an adult to stand upright on the major part of the wooden platform as it was positioned too close to the balcony structure. Nevertheless, it may well have been possible to stand on the small outermost part, albeit very awkwardly and dangerously, and it would have been possible to stand fully erect and without impediment on at least half of the diagonal wooden plank." (Emphasis added, footnote omitted)
At [94] of the Decision, Commissioner McDonald reiterated her view that "it would have been possible to stand on the 100mm of exposed wooden platform, albeit awkwardly and dangerously" and that she was "fortified in this view by the verbal exchange" between Mr Visscher and Mr Fripp on 7 December 2020, which is set out at [103] of the Decision. That paragraph commences as follows: "The agreed transcript of the recorded part of the conversation reveals that Mr Visscher told the Inspector, shortly after he commenced the recording, that his 'last job' was to clean up some adhesive which had dripped from the left side of the decking overlapping the front edge of the balcony. It is clear from what was said that, but for the issue of the direction not to work on the scaffolding or balcony, Mr Visscher had intended to undertake that work on that day or very shortly thereafter, and he proposed to use the scaffold to do it…"
It was reasonably open on the evidence for Commissioner McDonald to make the observation impugned by Ground 8. There is no basis to conclude that the Commissioner's finding was "irrational and illogical", much less "capricious, arbitrary or unreasonable". We note again the authority referred to at [54] above. In essence, Mr Visscher expressed disagreement with the Commissioner's finding, but he did not demonstrate appellable error.

[18]

Ground 10

Ground 10 challenges the Commissioner's finding that Mr Fripp held a reasonable belief within the meaning of s 195 of the WHS Act as being "against the evidence and the weight of evidence".
As referred to above, the second "part" of the Decision was directed to that question. The Commissioner identified the approach to take - which is not challenged on appeal - as follows: "150. Section 195 only applies and an Inspector can therefore only issue a direction prohibiting the carrying on of an activity, if the inspector reasonably believes that an activity of the kind described in s 195(1) (a) or (b) is occurring or may occur. 151. There is no debate between the parties that the test of reasonable belief is objective. It requires the existence of facts which are sufficient to induce the state of mind in a reasonable person and the objects of the WHS Act inform the determination of what is reasonable: Growthbuilt Pty Ltd v SafeWork NSW [2018] NSWIRComm 1002; 274 IR 317 at [55]-[61]." (Italics in original)
The Commissioner proceeded to observe: "152. I set out at [71] the reasons why Mr Visscher contended that the Inspector could not have formed the required objectively reasonable belief. I accept that some of the matters of fact to which Mr Visscher referred are made out on the evidence, however they are not sufficient to overcome the Inspector's evidence that he formed the belief: (1) 'that an activity was likely to occur at the site that involved a serious risk to the health and safety of one or more persons [and] that the serious risk would emanate from an immediate exposure to a hazard of the non-compliant scaffold, which was incapable of preventing a fall'; and (2) 'that [the scaffold] was likely to be used in the future because the house was under construction and the scaffolding was at the front of the house and it was there for a purpose, to build the house'."
At [153]-[164] the Commissioner traversed the evidence and submissions advanced by the parties on the question of Mr Fripp's "reasonable belief". We consider that the finding that Mr Fripp held the requisite reasonable belief was available on the evidence before her. Ground 10 does not demonstrate appellable error.

[21]

Ground 15

Ground 15 relates to [160] of the Decision, in which Commissioner McDonald observed: "160. Mr Visscher contended that no workers on the site were exposed to a hazard. At the risk of repetition, Mr Visscher was a worker and would be exposed to the hazard if he accessed the scaffold, or for that matter the balcony, as it was not protected by a suitable scaffold. It was reasonable for the Inspector to believe that Mr Visscher may access the scaffold, or the balcony, given the state of the construction, and the reasonableness of his belief was subsequently borne out by Mr Visscher telling the Inspector that he had intended to clean the adhesive from the underside of the balcony and complete the installation of decking on the inner side of the balcony."
The Ground asserts that the third sentence of that paragraph demonstrates irrational or illogical reasoning, amounting to error. Mr Visscher's submissions, however, relate only to what the Commissioner found that he had told Mr Fripp. This is significant.
The Commissioner's statement at [160] of the Decision regarding the cleaning of the adhesive reflects the finding at [103] of the Decision, to which we have referred in respect of Ground 12. In support of Ground 15, Mr Visscher submitted, by reference to the extract from the transcript reproduced at [103] of the Decision, that he was not questioned as to what he meant when he told Mr Fripp that he was at "twos and fours". He sought to explain the term in his oral submissions to the Full Bench. Mr Visscher further submitted that the transcript revealed that he did not intend to use the scaffold "as it presently stood". [29]
As to the Commissioner's statement that Mr Visscher intended to "complete the installation of decking on the inner side of the balcony", Mr Visscher relied on other extracts of the transcript of his conversation with Mr Fripp (not reproduced in the Decision) to submit that Mr Fripp gave him "permission to go onto the balcony to do the work".
There are two points to make. First, as we have already observed, Commissioner McDonald was satisfied that there was a basis for Mr Fripp to have formed the "reasonable belief" required by s 195 of the WHS Act prior to his conversation with Mr Visscher. The matters to which the Commissioner referred at [160] of the Decision reinforced her conclusions as to the reasonableness of the belief, but were not germane to her finding as to the existence of that belief.
Second, the matters the subject of challenge in Ground 15 are findings of fact. Mr Visscher did not demonstrate that these findings were not available on the evidence. Mr Visscher's submissions as to his intention to modify the scaffolding or to having been granted permission by Mr Fripp to access the balcony do not undermine, but rather support, the factual basis of the Commissioner's statement that it "was reasonable for [Mr Fripp] to believe that Mr Visscher may access the scaffold, or the balcony, given the state of the construction".

[22]

Ground 16

In the proceedings below, one of the grounds on which Mr Visscher argued that Mr Fripp could not have formed the "reasonable belief" required by s 195 of the WHS Act was that he had "encouraged" Mr Visscher to use the scaffold after Mr Fripp had left the site. Commissioner McDonald did not accept that argument.
Ground 16 challenges the following statement at [163] of the Decision: "I do not accept that the Inspector 'encouraged' Mr Visscher to use the scaffold". It is contended that in making that statement the Commissioner engaged in irrational or illogical reasoning, and so erred.
At [105]-[107] of the Decision, Commissioner McDonald explored the evidence in respect of this issue, drawing predominantly on the contents of the transcript of the conversation between Mr Fripp and Mr Visscher on 7 December 2022. At [108] of the Decision, the Commissioner described Mr Fripp's remarks as "regrettable" but found that they did not undermine his belief as stated in the Prohibition Notice. In the same paragraph, the Commissioner stated that it was clear that Mr Visscher understood both that he was legally obliged to comply with the Prohibition Notice and that any remarks made by Mr Fripp did not remove that legal obligation from him.
Having noted these matters, it is important to see the particular statement impugned by Ground 16 in the context in which it appears: "163. Mr Visscher contended that the Inspector did not form the requisite reasonable belief in circumstances where SafeWork do not really mind about owner-builders because they work at their own risk and Inspector Fripp encouraged Mr Visscher to use the scaffold after the Inspector had left the site. I do not accept that the Inspector 'encouraged' Mr Visscher to use the scaffold, but as discussed at [105]-[108] above, he did say certain things that may have given Mr Visscher the impression he could use the scaffold and work on the balcony with impunity. For the reasons I explained at [108] I do not consider that what Inspector Fripp said to Mr Visscher undermines the Inspector's belief as stated in the Prohibition Notice."
Ground 16 rises no higher than reflecting Mr Visscher's disagreement with a factual finding, and a grievance that the Commissioner did not accept an interpretation of the facts that he had advanced. The Commissioner clearly set out her reasons for not accepting Mr Visscher's argument. It was a factual finding which was open to her on the evidence.

[23]

Conclusions

In respect of the key grounds advanced by Mr Visscher as to why leave to appeal should be granted, we find as follows: 1. The Application does not give rise to "questions of law concerning the proper construction of statutory provisions". There was no challenge to Commissioner McDonald's construction of the word "undertaking" as it appears in ss 5 and 7 of the WHS Act. 2. The Commissioner's finding that Mr Visscher, in constructing a dwelling as an owner-builder, was conducting an undertaking was not a matter of statutory construction but a finding of fact (albeit a jurisdictional fact). It was a finding that was reasonably open to the Commissioner on the evidence. 3. In the absence of Mr Visscher having identified error in the Commissioner's finding that he was conducting an undertaking, his submission as to the effect of the Decision being a "precedent decision with widespread practical application [affecting] all jurisdictions across Australia with the same or similar laws to the WHS Act" requiring "guidance" from the Full Bench has little force, leaving aside whether the giving of guidance in the manner described by Mr Visscher properly reflects the role of the Full Bench on appeals. 4. There was no denial of procedural fairness in Mr Visscher not having an opportunity to adduce evidence to rebut that provided by Mr Fripp during cross-examination. 5. There is no question of the Decision having brought the administration of justice into disrepute on the basis that the Commissioner relied on the "false evidence of a key witness" for SafeWork NSW to find in favour of SafeWork NSW. This related to Mr Fripp's evidence regarding the internal staircase. It is clear from the Decision that the Commissioner did not rely on that evidence in determining whether Mr Fripp held the reasonable belief required by s 195 of the WHS Act. 6. To the extent that the Application challenges the Commissioner's findings of fact, it does not reveal error. The impugned findings were reasonably open to the Commissioner on the evidence. 7. The Application does not otherwise demonstrate any appellable errors in the Decision.
For these reasons, and based on the matters we have canvassed, we find that the Application does not raise substantial issues of law and principle, or have implications for the wider jurisprudence of the Commission, to adopt the language of Walton J in Secretary of the Ministry of Health v The New South Wales Nurses and Midwives' Association at [21]. Consequently, we are not persuaded that the Application raises any matter of such importance that, in the public interest, leave to appeal should be granted.

Visscher v SafeWork NSW

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