[1995] HCA 58
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
[2010] HCA 1
Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR 154
[2021] NSWCA 294
SafeWork NSW v Visscher (No 3)
Source
Original judgment source is linked above.
Catchwords
[1995] HCA 58
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531[2010] HCA 1
Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR 154[2021] NSWCA 294
SafeWork NSW v Visscher (No 3)
Judgment (3 paragraphs)
[1]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
JUDGMENT
THE COURT: On 7 December 2020, an inspector for SafeWork NSW (SafeWork) issued to the applicant, Mr Visscher, a prohibition notice under s 195 of the Work Health and Safety Act 2011 (NSW) (WHS Act). That notice precluded Mr Visscher from conducting further work on his residential property until he had taken certain steps to remedy what were said to be deficiencies in the scaffolding erected on that property. Mr Visscher made an application under s 224 of the WHS Act for an internal review of the inspector's decision to issue that notice. The "internal reviewer" confirmed that decision.
On 11 January 2021, Mr Visscher commenced proceedings in the Industrial Relations Commission of New South Wales (Commission) under s 229 of the WHS Act for an "external review" of that decision, contending that the notice was invalid. The Commission has not yet heard or determined that application to which SafeWork is the respondent.
The subject matter of Mr Visscher's application for leave to appeal to this Court is interlocutory and concerns whether SafeWork is entitled to claim public interest immunity from production of parts of documents otherwise liable to be produced in the underlying proceedings in response to a Notice to Produce issued by Mr Visscher on 8 February 2021. The documents produced included photographs that had been redacted entirely. Some of the remaining documents produced contained writing which had been redacted as to part. Mr Visscher, by way of a Notice of Motion filed on 12 February 2021, sought orders that these documents be produced without redaction. Commissioner Murphy ruled in favour of Mr Visscher in respect of some of the documents and determined that SafeWork was not entitled to redact any of the photographs. SafeWork resisted that application, claiming public interest immunity on the basis that production of the documents would directly or circumstantially identify the person responsible for making the report that resulted in the inspector attending Mr Visscher's premises.
SafeWork sought and was granted leave under s 188 of the Industrial Relations Act 1996 (NSW) (IR Act) to appeal from Commissioner Murphy's orders to the Full Bench of the Commission.
On 17 December 2021, the Full Bench upheld that appeal in part, quashing the order for production of the photographs without redaction on the basis that they along with other information were capable of identifying the maker of the report. Mr Visscher's cross-appeal seeking that certain other documents be produced without redaction was dismissed.
On 31 March 2023, Schmidt AJ dismissed with costs Mr Visscher's application for judicial review of the orders made by the Full Bench (Visscher v SafeWork NSW (No 3) [2023] NSWSC 317). Because of the provisions of s 179(1) of the IR Act, it was necessary that Mr Visscher demonstrate jurisdictional error on the part of the Full Bench (Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [100]).
Distinguishing between errors of law within jurisdiction and such errors going to jurisdiction requires a different application of the relevant principles depending on whether the orders are of an administrative tribunal, such as the Industrial Relations Commission, or of an inferior court (Kirk at [67]). In Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58, the basis of that distinction was identified as the lack of authority of an administrative tribunal "either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law" (at 179). The Court explained (also at 179):
If [an] administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
The essential difference is between an inferior court authorised to decide questions of law wrongly and ordering accordingly and a tribunal not having authority to do so. As Leeming JA said in Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR 154; [2021] NSWCA 294 at [8]:
It is important to bear steadily in mind that a court may be, and very commonly is, authorised to decide questions of law wrongly, while bodies which are not courts are ordinarily not authorised to decide questions of law wrongly. This distinction has a sharp impact on the identification of jurisdictional error. A body which is not a court will ordinarily commit jurisdictional error if it misapprehends a statute in a way which is material to its decision. On the other hand, a court which decides a question of law wrongly will ordinarily not thereby fall into jurisdictional error.
Whether a tribunal has any authority to decide questions of law wrongly depends on the terms of the statute conferring its authority. For example, the Commission is given limited powers of interpretation by s 175 of the IR Act.
Mr Visscher requires leave to appeal from the orders of Schmidt AJ because the evidence does not and could not suggest that the orders appealed from involve any claim to or of the value of $100,000 or more (Supreme Court Act 1970 (NSW), s 101(2)(r)).
Leave to appeal should be refused.
Whilst the operation of the doctrine of public interest immunity may in some cases give rise to a question of public importance, it does not do so in the circumstances of this case. First, the decision appealed from is interlocutory and is not likely to be relevant to the determination of the issues in Mr Visscher's underlying application for external review. As was found by the Full Bench, the redacted photographs were not taken into account in the inspector's decision to issue the prohibition notice, which was based on his examination of the site and his subsequent conversation with Mr Visscher (SafeWork NSW v Visscher (No 3); Visscher v SafeWork NSW (No 2) [2021] NSWIRComm 1099 at [137]-[139]).
Secondly, it is not reasonably clear that Schmidt AJ's decision is wrong. Her Honour held that the Full Bench did not err in concluding there was a "real public interest" in maintaining the confidentiality of the person responsible for the report leading to the issue of the notice, given that such disclosure could discourage potential informers (J[161]). That reasoning accords with the rationale underlying successful immunity claims made by police informers, as well as informants who provide information to public or quasi-public authorities; as to which see the cases cited by the Full Bench (SafeWork NSW v Visscher (No 3) at [98]-[100]).
Thirdly, the present application has already consumed substantial resources of the Commission, this Court and the parties, and has no doubt delayed the determination of the underlying proceedings which concern the validity of a prohibition notice issued in relation to the remediation of deficiencies in scaffolding on a residential property. The interests of justice as between the parties and the public interest in having proceedings concerning the safety of a worksite determined expeditiously, and without the incurring of further unnecessary and disproportionate legal costs, demand that Mr Visscher's summons for leave to appeal be dismissed.
There remains one not insignificant matter which must be addressed, if only to explain why no order should be made as to the costs of Mr Visscher's unsuccessful application. It arises in relation to a misconception on Mr Visscher's part, and also on the part of the Full Bench, as to the jurisdiction which the Full Bench was exercising in determining SafeWork's appeal from Commissioner Murphy's orders as to the production of documents.
In his cross-appeal before the Full Bench, Mr Visscher argued that, as he was not in December 2020 a "person conducting a business or undertaking" at his residential property within s 5 of the WHS Act, that "place" could not be a "workplace" within s 8(1). It followed according to this argument that any activity occurring there was not "at a workplace" within s 195(1)(a). On that basis Mr Visscher contended that the works which he was then conducting were not subject to the WHS Act. Mr Visscher described this argument as raising "a question of jurisdiction" for the Full Bench.
More accurately, it raised a question as to the valid exercise of the inspector's power to give a direction under s 195(2) prohibiting the carrying out of the relevant activity, which was to be confirmed by a prohibition notice issued under s 195(3). That question properly arises in Mr Visscher's "external review" application. However, the outcome of that question could not raise any doubt as to Mr Visscher's entitlement, as the person to whom the notice was issued, to have the "decision" of the inspector to issue the notice reviewed under s 224; and his entitlement, in the event of an adverse decision, to pursue an external review before the Commission.
Nor could that argument raise any doubt as to the Commission's jurisdiction to conduct an external review of that decision and to "confirm, vary or revoke the decision concerned" (WHS Act, s 229(4)). Under s 146(1)(e) of the IR Act, the functions conferred on the Commission include those "conferred on it by this or any other Act or law". That jurisdiction was not dependent upon the inspector having made a valid or lawful "decision". Nor did Mr Visscher's status as an "eligible person" depend on whether he was engaged "at a workplace" when the relevant decision was made (WHS Act, ss 195(1), 224). He was and remains a "person to whom" such a notice "was issued", irrespective of whether that notice was invalid or of no effect (WHS Act, s 223 item 9).
Equally, the question as to the validity or otherwise of the prohibition notice had nothing whatsoever to do with the jurisdiction of the Full Bench. That jurisdiction was to hear SafeWork's appeal from Commissioner Murphy's interlocutory orders made in proceedings which engaged the Commission's jurisdiction conferred by WHS Act, s 229(4) and IR Act, s 146(1)(e).
However, the Full Bench did not approach the question as to the Commission's jurisdiction in that way. It considered, wrongly, that (at [26]):
If [Mr Visscher] 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.
The Full Bench then proceeded to "hear from the parties" on the question of its jurisdiction, posed as follows (at [44]):
… 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.
This question was considered at [45]-[73], the Full Bench concluding that "the Commission has jurisdiction to hear and determine this matter".
In so proceeding, the Full Bench considered an issue which was not properly raised in the appeal or required by any correct consideration of its jurisdiction conferred by ss 187 and 188 of the IR Act. In Visscher v SafeWork NSW (No 2) [2022] NSWSC 1253 at [54]-[57], Garling J made tentative observations to the same effect in the course of addressing a notice of motion seeking summary dismissal of the judicial review proceeding.
At [24], the Full Bench recorded SafeWork's submission that this "question of jurisdiction [raised by Mr Visscher] did not properly arise on appeal" because it had not been argued before or determined by Commissioner Murphy. While correct, that submission did not squarely take issue with Mr Visscher's description of his argument as raising a question as to the Commission's jurisdiction. Had SafeWork done so, the Full Bench may not have undertaken an inquiry which was not relevant to any consideration of the Commission's jurisdiction, did not arise in the appeal, and traversed matters which were to be dealt with in the external review. SafeWork accepted before this Court that to the extent such matters had been dealt with by the Full Bench, they were to be treated as obiter and not binding as between the parties in relation to that external review.
In the judicial review proceedings before the primary judge, Mr Visscher maintained his argument that the Commission did not have jurisdiction to hear his application for external review. Her Honour noted that this "jurisdictional" question had been raised (J[7(1)], [18(2)]) and dealt with aspects of it at J[84]-[88] and J[105]-[121], concluding by reference to the applicability of the WHS Act that "the Full Bench was correct in its conclusion that the Commission had jurisdiction" (J[121]). Her Honour had earlier observed that the so-called jurisdictional question had not been raised before Commissioner Murphy (J[50]). Her Honour then observed (J[51]), correctly in our view, that the Full Bench was not, by reason of Mr Visscher's argument as to jurisdiction, "entitled to embark on the hearing of the merits of his review application". To the extent that her Honour engaged with issues remaining to be dealt with in the external review, SafeWork again accepted that her findings were to be treated as obiter.
Returning to the question of costs, the following considerations are relevant. First, Mr Visscher is not a lawyer and has represented himself in the proceedings before the Commission and the Supreme Court. Secondly, the proceedings before the Full Bench miscarried in one respect where that outcome would have been avoided by an appreciation that Mr Visscher's argument as to the construction of the WHS Act was only relevant to the success or otherwise of his review application, and did not raise any question as to the Commission's jurisdiction to hear that application. Thirdly, Mr Visscher has been ordered to pay SafeWork's costs of the proceedings before the primary judge (J[185]). As both parties to some extent acquiesced in the course taken by the Full Bench and Mr Visscher is to pay SafeWork's costs below, each should bear his or its own costs of the application to this Court.
[3]
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Decision last updated: 17 July 2023