Visscher v Safework NSW [2025] NSWSC 489 | Case summary | Zoe

NSWNSWSC

Visscher v Safework NSW

[2025] NSWSC 489

Supreme Court of NSW|2025-05-19|Before: McHugh JA

View on NSW Caselaw

At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2025-05-19

Before

McHugh JA

Catchwords

ADMINISTRATIVE LAW — Industrial Relations Commission of New South
Wales — nature and extent of jurisdiction conferred
by s 229 of the
Work Health and Safety Act 2011 (NSW) — whether questions of construction

Source

Original judgment source is linked above.

Catchwords

ADMINISTRATIVE LAW — Industrial Relations Commission of New SouthWales — nature and extent of jurisdiction conferredby s 229 of theWork Health and Safety Act 2011 (NSW) — whether questions of constructionand application of the Act within jurisdiction ADMINISTRATIVE LAW— denial of procedural fairness — where plaintiff had no notice ofevidence — where plaintiffalleged not given opportunity to lead rebuttalevidence — where surprise evidence not relied on in Commissioner’sdispositivefindings — whether outcome would have inevitably been the samehad alleged error not been made — no jurisdictional error

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Visscher v Safework NSW [2025] NSWSC 489

Hearing dates: 12 March 2025

Date of orders: 19 May 2025

Decision date: 19 May 2025

Jurisdiction: Common Law - Administrative Law

Before: McHugh JA

(1) Pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW), extend the time to commence the proceedings up to and including 16 August 2024. (2) The amended summons filed on 30 September 2024 be dismissed. (3) The plaintiff pay the first defendant’s costs in this Court.

As noted above, the Commissioner’s authority to conduct the external review was conferred by s 229 of the WHS Act. It was not disputed in this Court that, because of the provisions of s 179 of the Industrial Relations Act 1996 (NSW), judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) is available only for jurisdictional error: Kirk v Industrial Court of N**ew South Wales (2010) 239 CLR 531; [2010] HCA 1 at [100]; Visscher CA at [6].
These reasons will address jurisdictional error below. However, in light of the way in which the plaintiff advanced his arguments on the amended summons, it is appropriate at the outset to draw a basic distinction. That is between “jurisdictional error” affecting the Inspector’s exercise of the power in s 195 to issue the Notice, and “jurisdictional error” affecting the Commissioner’s exercise of the authority conferred on her by s 229 to conduct the external review.
The plaintiff’s goal is to establish that the Notice was invalid. To that end, the plaintiff identified certain matters which he described as “jurisdictional facts”, in the sense of conditions on the Inspector’s power to issue the Notice under s 195, which the plaintiff submitted were absent. The questions whether or not those facts existed, and whether or not they were necessary to give legal validity to the Inspector’s exercise of the power to issue the Notice, were issues before the Commissioner on the s 229 external review.
But the validity of the Inspector’s exercise of the s 195 power is not the question on the present application for judicial review. The present question is an entirely different one: whether the Commissioner exceeded the limits of the authority conferred on her by s 229 so as to fall into jurisdictional error in making the Decision. The plaintiff’s argument largely blurred the distinction between error in the Inspector’s exercise of the s 195 power and jurisdictional error by the Commissioner.
In order to determine whether there was jurisdictional error in the Commissioner’s decision, it is necessary to have some understanding of the specifics of the external review she was conducting. That in turn requires that some attention be paid to the statutory provisions going to the Inspector’s power to issue the Notice. But it is important not to be distracted by that exercise into thinking that the question whether there was jurisdictional error in Commissioner McDonald’s Decision turns on the existence of the matters necessary to engage the Inspector’s s 195 power.

The first and second reasons provide the context in which the plaintiff’s arguments as to jurisdictional error arise on the present summons.
The first issue, whether the plaintiff was subject to the WHS Act at all, raised questions of statutory interpretation before the Commissioner. The plaintiff’s position was that the construction site of his house was not a place where work was “carried out for a business or undertaking” so as to constitute it a “workplace”. On that basis, he said that the power in s 195 was not engaged. He also denied that he was a “person conducting a business or undertaking”, such that the primary duty of care in s 19 did not apply to him. Although the Commissioner accepted the plaintiff’s interpretation of the words, “business or undertaking”, she was against him on the facts, in particular, because of what she found was involved in being an owner-builder.
It might be noted that the words in s 195(1), “if an inspector reasonably believes that …”, invoke familiar concepts. See, e.g., George v Rockett [1990] HCA 26; (1990) 170 CLR 104 at 116. The parties appear to have proceeded on the footing that the “workplace” issue was to be determined objectively upon the proper construction of the WHS Act, rather than by reference to whether the Inspector reasonably (even if mistakenly) believed that the place where the scaffold was located was or might be a workplace. It is at least arguable that that was not the correct approach; cf. Ruddock v Taylor (2005) 222 CLR 612; [2005] HCA 48 at [41]-[46] per Gleeson CJ, Gummow, Hayne and Heydon JJ; [228]-[230] per Callinan J. But neither party pursued the issue when it was raised in argument, and it is by no means clear that it would have resulted in a different outcome below in any event, in light of the information imparted by the plaintiff to the Inspector before he exercised his s 195 powers.
Before the Commissioner the second issue, whether the Inspector could reasonably have believed that an activity involving a serious risk to health or safety might occur, turned largely on the facts. In particular, the plaintiff argued that the scaffold was not accessible to persons other than the plaintiff himself (i.e., because there was a security fence around the whole property: Tcpt, 12 March 2025, 70.24-27), such that the Inspector could not have reasonably believed that it gave rise to a serious risk to health or safety.

However, a distinction based on the dichotomous characterisation of the body on which the authority to decide is conferred as either a “court” or an “administrative tribunal” may be of limited assistance in answering the question whether any identified error was jurisdictional in cases involving State bodies such as the Commission. That is because, as was explained in Kirk at [69], at the State level, where the separation of powers required by Ch III of the Commonwealth Constitution is absent, the distinction between a court and an administrative tribunal may not always be drawn easily. See to similar effect Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501; [2006] WASCA 219 at [105]ff per Martin CJ (Wheeler JA agreeing); The Returned & Services League of Australia (Victoria Branch) Inc v Liquor Licensing Commission [1999] 2 VR 203; [1999] VSCA 37 at [27] per Phillips JA (Charles and Buchanan JJA agreeing). The difficulties in characterising State bodies for this purpose are accommodated by the proviso in Kirk at [68]: “(at least in the absence of contrary intent in the statute or other instrument establishing it)”, which explains Leeming JA’s acknowledgement that bodies which are not courts are ordinarily not authorised to decide questions of law wrongly.
That being so, the important issue in determining whether any identified error made by the Commissioner was jurisdictional is not the label to be attached to the body, but the nature and extent of the authority to decide conferred on it. That is because “incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction”, rather than a jurisdictional error: Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [163] per Hayne J, quoted in Kirk at [66].
In particular, to return to the rationale for the distinction between courts and other bodies: in respect of any particular question, whether of fact or law, was the Commissioner authorised not only to decide it, but also to decide it wrongly? The question whether any error was jurisdictional (that is, whether the error resulted in the decision made lacking legal force) is thus a question of statutory construction: LPDT at [4]; Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1; [2023] HCA 3 at [55] per Gordon, Edelman, Steward and Gleeson JJ.
In this case a combination of provisions of the WHS Act and the Industrial Relations Act conferred authority on the Commission to conduct the external review and made provision for how it was to be conducted.
By s 146(1) of the Industrial Relations Act, “[t]he Commission has the following functions— … (e) functions conferred on it by this or any other Act or law.”
Section 229 of the WHS Act conferred such a function. It provides as follows.

By s 162 of the Industrial Relations Act, the Commission may, subject to the Act, determine its own procedure. By s 163, the Commission is not bound to act in a formal manner, or by the rules of evidence, and may inform itself on any matter in any way that it considers to be just. It is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
Most significantly for present purposes, by s 175 of the Industrial Relations Act, the “Commission may, for the purpose of exercising its functions in connection with a matter before it, determine any question concerning the interpretation, application or operation of any relevant law or instrument (including the industrial relations legislation and any industrial instrument).”
By s 179(1), a decision of the Commission is “final”, subject only to certain rights of appeal (and, of course, to judicial review for jurisdictional error). Sections 187 and 188 provide for appeals by leave to the Full Bench of the Commission.
These matters indicate that Parliament conferred on the Commission authority to decide at least some questions of law, and to decide those questions wrongly: Secretary of the Ministry of Health v Australian Paramedics Association (NSW) (2022) 320 IR 198; [2022] NSWSC 1431 at [179] per Walton J.
It follows that the Commissioner is not to be equated with a mere administrative tribunal which falls into jurisdictional error whenever it identifies a wrong issue, asks itself a wrong question, ignores relevant material, or relies on irrelevant material. Not every error of law or misinterpretation or misapplication of statute by the Commissioner will be jurisdictional. The plaintiff’s submission in oral argument (Tcpt, 12 March 2025, 10.4-12) that everything which he identified in his written submissions as an error of law was a jurisdictional error on the part of the Commissioner must therefore be rejected.
However, the kinds of errors that will be jurisdictional when made by an inferior court will also generally be jurisdictional when made by the Commission. For example, as Gordon, Edelman, Steward and Gleeson JJ said in Stanley at [57] (footnotes omitted):

The plaintiff represented himself. The Grounds of review in his amended summons were at times somewhat discursive; they were amplified in written submissions.
Ground 1 in the amended summons sought an extension of time within which to commence the proceedings. This was explained on the basis that the plaintiff had pursued his application for leave to appeal to the Full Bench. The application for extension of time was not opposed. The delay is not great and there is no suggestion of prejudice to any party. In the circumstances of this case, the extension of time should be granted and the application addressed on its merits.
In addition to the materials in the joint court book, the plaintiff sought to rely on a red folder of documents, tabs 2-12 of which included transcripts of the proceedings before the Commissioner, copies of documents admitted into evidence before the Commissioner, copies of other documents which were not in evidence before the Commissioner, and an affidavit of the plaintiff made on 21 October 2024 (i.e., well after the Decision). Most of that material was directed in one way or another to complaints about procedural fairness. Although SafeWork NSW objected to that material, its counsel also referred to aspects of it in submissions.
I deferred ruling on the material. My ruling is that the material should be admitted for the purpose only of supporting the plaintiff’s case of jurisdictional error on the ground of denial of procedural fairness, as follows.
The red folder, other than tab 1 (a copy of the plaintiff’s written submissions in reply in this Court) is admitted as Exhibit P-1.
The material at tabs 3-12 is admitted only as evidence of matters which occurred or did not occur in the course of the proceedings before the Commissioner. That material is not admitted as evidence going to proof of any matter in issue before the Commissioner, such as the state of the building site on 7 December 2020, the events of that day or the state of mind of any person.
Tab 2, being the plaintiff’s affidavit of 21 October 2024, is admitted on the same limited basis. To the extent that it gives an indication of the nature of the evidence the plaintiff wished to lead in reply before the Commissioner, it is to be read on that basis and otherwise as submission.
The documents in MFI-1, being an outline of submissions by the plaintiff on the external review application, and an outline of submissions in reply, are to be added to tab 12 (see Tcpt, 12 March 2025, 5.5-50).

The issue the Commissioner was addressing at this point was the application to the facts of the interpretation she had given to the statute: “an undertaking must have some characteristic in common with or which makes it similar or comparable to, a business”. In light of that construction, which is not in issue, it was undoubtedly appropriate for the Commissioner to compare the plaintiff’s role as an owner-builder with that of a licensed commercial builder, and more generally to take into account the elements of organisation and systems involved in the owner-builder role.
For that purpose, s 163(1)(b) of the Industrial Relations Act authorised the Commissioner to inform herself on any matter in any way she considered to be just. There was no jurisdictional error in her doing so in the manner identified at D[140]. The plaintiff’s complaint that there was “no admissible evidence” in support of the propositions in D[140] is unsustainable, given that s 163(1)(b) expressly provided that the Commissioner was not bound by the rules of evidence.
In any event, there was other evidence relevant to this issue before the Commissioner, and the relevant primary facts were largely not in issue. As noted above, it was not in dispute before the Commissioner that the plaintiff was required to have an owner-builder permit and to have completed the requisite training: see ss 12 and 31(2)(d) of the Home Building Act 1989 (NSW) and cl 17 of the Home Building Regulation 2014 (NSW). Nor was it in dispute before the Commissioner that the plaintiff had obtained such a permit, or that he had undertaken the requisite training. It was also not in dispute that he had in the past engaged tradespeople to perform particular tasks in the construction of his house (although none was involved on the day the Notice was issued). Indeed, the plaintiff himself accepted that he had been a person conducting an undertaking at the earlier times when he had engaged other people to do work on the house: Tcpt, 12 March 2025, 27.18-26.
Those matters were the context in which the Commissioner referred to the third document (SafeWork Australia’s “Interpretive Guideline”) at D[141]. The Commissioner said, “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 was a reference to a passage from the second reading speech of the Work Health and Safety Bill 2011 quoted at D[125]:

The conclusion which the Commissioner reached on this issue was, as she indicated (“Given the above …”), based on the view she had reached about the plaintiff’s role as an owner-builder. The Commissioner then noted at D[141] that her view that construction of a dwelling was not for a private or domestic purpose was consistent with the approach taken in SafeWork Australia’s “Interpretive Guideline”, from which she then quoted. In particular, the Guideline stated that individual householders “who engage persons to carry out ad hoc home maintenance and repairs” should not be taken to be a PCBU. As the Commissioner said at D[142], “The building of a residential property is a major and important task – it is not ad hoc home maintenance or repair.”
The very limited use the Commissioner made of the Guideline in the paragraph with which the plaintiff took issue thus amounted to no more than acknowledging that the conclusion she had reached was consistent with the position adopted by SafeWork Australia independently of the dispute. There was no jurisdictional error in so doing.
The plaintiff submits at PSA [33] that “the existence of the fact in [26.a.] [i.e., the finding at D[143] that constructing a dwelling pursuant to an owner-builder permit is an ‘undertaking’] was not raised”. To the extent that this is a procedural fairness complaint, it is appropriate to have regard to the submissions made on behalf of SafeWork NSW dated 19 September 2023, that is, two months before the hearing in the Commission.
Paragraph 32 of those submissions was: “The Commission will be satisfied that the term ‘undertaking’ in both s 8 and s 5 of the WHS Act covers owner-builder construction projects.” Paragraph 49 submitted that the work of constructing a home as an owner-builder could not be considered to be private or domestic work. Paragraphs 47 and 48 expressly referred to the documents which are the subject of complaint under this Ground, which were identified as annexures to Mr Fripp’s affidavit. The plaintiff’s procedural fairness complaint is unsustainable here.
In the plaintiff’s Summary of Argument in Reply (PSAR) at [3], the plaintiff went further. He complained that while the Commissioner had indicated (in a quite different context) that she would adhere to the rules of evidence as much as possible, she did not do that in relation to the NSW Fair Trading documents, which he complained were hearsay. The plaintiff submitted: “The Commissioner is ‘actually biased’ against the Plaintiff.” That was a serious allegation, for which there is no proper basis. It should not have been made.

Ground 4 is that the Commissioner “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’ within the meaning of that word in s 5 of the [WHS Act]”. The amended summons then repeats the particulars to Ground 2.
The plaintiff’s written submissions argue that the correct question is as follows at PSA [43]: “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?”
In stating that the Commissioner asked the wrong question (as set out above), Ground 4 oversimplifies the Commissioner’s reasoning process on the “undertaking” issue, and ignores important aspects of it. For example, at D[144] the Commissioner specifically addressed (and rejected) the plaintiff’s argument that at times when he did not engage others to perform work on site he was not engaged in an undertaking.
To the extent that this Ground suggests that it was an error for the Commissioner to consider, as part of a reasoning process leading to the conclusion that the plaintiff was conducting an undertaking, the question whether he was constructing a dwelling pursuant to an owner-builder permit, the suggestion should be rejected. That is particularly so, given that the plaintiff did not dispute that he had been conducting an undertaking when he engaged tradespeople to work on site.
As to the plaintiff’s formulation of the question, it is circular (it assumes cessation of the “undertaking”); it turns on matters not established (e.g., “in isolation”); and it is far too narrow to capture all the issues relevant to the application of the statutory language to the facts.
In any event, questions of construction of the WHS Act and of the application of that Act to the facts were questions within the jurisdiction of the Commissioner in conducting the external review. For that purpose, the Commissioner’s authority extended to identifying the issues. It follows that even if the Commissioner had asked herself the wrong question, that would be an error within jurisdiction.
The plaintiff’s failure to observe the distinction between the facts necessary to engage the Inspector’s power to issue the Notice pursuant to s 195 on the one hand, and jurisdictional error by the Commissioner on the other, was stark here. In his submissions in reply at PSAR [5(k)], the plaintiff said: “In the circumstances, the threshold jurisdictional issue for the Commissioner is to be satisfied on a question of jurisdictional fact of whether the Inspector had jurisdiction under the WHS Act to issue the prohibition notice. Accordingly, the right question to ask is set out in the PS at [43].” The attempt to collapse the distinction in that way was wholly misconceived.
To the extent that this Ground otherwise repeats the arguments made under Ground 2, it fails for the same reasons.

The gist of Ground 5 is that “the plaintiff 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)”.
It is common ground that the plaintiff did not have prior notice of one aspect of the Inspector’s evidence, which concerned the availability of access to the balcony via a stairway inside the house (what might be called the “surprise” evidence). The plaintiff’s position is that on the day of the Inspector’s visit, there had been “an ‘air gap’ of about 4.7 metres between the top of the internal staircase and the balcony” and that “it was not possible to walk on a system of beams between the top of the staircase to the balcony”: at PSA [60]. That was the effect of the rebuttal evidence the plaintiff complains he was denied the opportunity to give. (Whether the Commissioner did deny the plaintiff that opportunity may be debateable, as discussed below.)
Before turning to the Decision, it is necessary (1) to identify the nature of the procedural fairness complaint, and (2) to explain the context in which the Commissioner referred to this aspect of the Inspector’s evidence.
As to the first matter, the plaintiff’s complaint is not that the issue was never raised at the hearing. He says instead that when the issue arose at the hearing he was not given an opportunity to respond to it by further evidence (although it should be noted that the plaintiff was permitted to cross-examine on it, and he did so). The plaintiff’s complaint is that in those circumstances it was procedurally unfair for the Commissioner to accept the Inspector’s evidence that it was possible to access the balcony via the internal staircase and to rel**y on that in deciding to dismiss the external review. As will be seen, that is not an accurate account of the Commissioner’s reasoning.
As to the second matter (the context in which the evidence was mentioned), the power to issue a prohibition notice conferred on an inspector by s 195 is engaged “if an inspector reasonably believes” various matters, including, in subs (1)(b), 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. The activity here was, relevantly, working on the scaffold or the balcony. The possibility that that activity might occur depended on the possibility of access to the platform of the scaffold and/or the balcony, by whatever means.
As to reasonable belief, the law was explained in George v Rockett at 116 by comparing belief with suspicion:

Paragraph 110, and the third and fourth sentences of D[161], contain references to the evidence of which the plaintiff complains, to the effect that it was possible to access the balcony via the internal staircase. But the Commissioner’s dispositive findings on the question of reasonable belief expressly did not depend on that evidence:
“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”: at D[111].
“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”: at D[111].
“It was reasonable for the Inspector to believe that Mr Visscher may access the scaffold, or the balcony, given the state of the construction”: at D[160].
Those dispositive findings about reasonable belief did not turn on the question whether access was in fact possible; still less that access via the staircase was in fact possible. These were findings that there were other reasonable bases for the Inspector’s belief, including the presence of equipment on the balcony. It would have been no answer to those findings for the plaintiff to lead rebuttal evidence that access to the balcony via the staircase was not in fact possible.
As noted above, the plaintiff’s procedural fairness complaint is that in deciding to dismiss the external review, the Commissioner relied on evidence that it was possible to access the balcony and ultimately the scaffold via the internal staircase, which the plaintiff was denied an opportunity to rebut by evidence that it was “not possible” to do so. However, since the Commissioner did not rely on such evidence in making her dispositive findings, the procedural fairness complaint fails on its own terms.
It is also clear from D[112], and from the fifth sentence of D[161], that the Commissioner accepted the Inspector’s evidence that access to the scaffold was also available via its horizontal components, which could be used like a ladder. That was an independent basis on which the Commissioner relied in making her dispositive findings that the Inspector reasonably believed that it was possible to access the scaffold (and, it would follow, from there, the balcony: see D[110] and D[111], both set out above, and see the evidence set out at [97] below). That being so, even if the Commissioner had relied on the evidence about the staircase in making her dispositive findings (which she did not), and even assuming that that had involved a denial of procedural fairness (by denying the plaintiff an opportunity of rebuttal), any such error would not have been material to the outcome in the sense explained in LDPT at [14]-[16]. This is a case where it would be affirmatively concluded that had the alleged error not been made, that is, even without reliance on the evidence about access via the staircase, the outcome would inevitably have been the same.
Those conclusions are reached without having to resolve three additional issues connected with the way the plaintiff conducted the hearing before the Commissioner. As explained below, it is contestable whether those issues would be resolved in favour of the plaintiff. In considering those issues it should, however, be remembered that the plaintiff was self-represented before the Commissioner.
The first issue is whether there could be any procedural unfairness arising from the Inspector’s evidence about access via the internal staircase, given the circumstances in which that evidence emerged. The plaintiff was cross-examining Mr Fripp about a photograph he had taken on the day he issued the Notice:

(It should be noted that this was several pages of transcript before the exchange at 18.2-11, which the Commissioner quoted at D[110], set out above.)
If the cross-examiner had let the topic drop after the first answer (“This photo does not show …”), that might have been the end of the matter. There had been no prior suggestion of “stair access to the scaffolding”, and that first answer was not evidence that there was such stair access; it was evidence that the photograph in evidence did not contain any view of stair access. To the extent that the Inspector’s answer might be taken as evidence of such stair access, the plaintiff could have argued that the Commissioner should disregard the Inspector’s evidence about access via the internal staircase, on the basis that it came as a surprise. Instead, the cross-examiner pressed on. He squarely put the question to the Inspector: “Are you saying that there was a stair access to the scaffolding?” That question, and the one which followed it, elicited the basic evidence which the plaintiff complains he was denied an opportunity to rebut. It was, thus, the plaintiff who introduced the whole topic into the case.
The second issue is whether the plaintiff in fact made, or at least pressed, an application to lead rebuttal evidence which the Commissioner refused. The point at which the plaintiff first raised the issue of rebuttal evidence came directly after the passage of transcript which the Commissioner quoted at D[110], set out above. The plaintiff asked, “Will I have an opportunity - I want to rebut what the witness just said in evidence. Will I have opportunity to produce rebuttal evidence?” The Commissioner initially replied, “No, you don’t, Mr Visscher. There would need to be a very significant reason why there’s not already evidence in that you can point me to to rebut that evidence.” The discussion then moved to the reason why there was no evidence already in the case to rebut the Inspector’s evidence about the internal staircase, and the fact that it was the plaintiff himself who had introduced the topic of stair access to the scaffold: Tcpt, 22 November 2023,18.21-49. The plaintiff did not then return to the question of rebuttal evidence, which seems to have fallen away.
Instead, the plaintiff followed a different forensic path. He asked if he could speak briefly with the witness out of the room; a request that was denied. The Commissioner then referred to a photograph of the internal staircase which was already in evidence, identified as W3. (The photograph was not taken on the day of the Notice.) The Commissioner said:

The plaintiff then cross-examined the Inspector on the photograph: Tcpt, 22 November 2023, 19.19-43. The Inspector said, “I do not recall what [the staircase] looked like from memory, as I did not take a photograph of it.” When the Commissioner asked whether the Inspector would accept that it was possible that one couldn’t use the internal staircase to access the balcony, his answer included, “I don’t, I don’t know. It would be possible, I would assume.” Those were good answers for the plaintiff. They explain the Commissioner’s statement at D[111], quoted above: “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.”
Viewing those matters as a whole, including the forensic path the plaintiff followed, it is contestable whether the plaintiff pressed an application for rebuttal evidence which was then refused.
The third issue is as follows. Even if the effect of the exchanges referred to above is that the Commissioner is to be taken to have refused an application to lead evidence in reply, that was a discretionary decision for the Commissioner in the conduct of the external review. The plaintiff has not attempted to challenge that exercise of discretion on any recognised basis, other than by reference to the result (i.e., application refused), which he claims is procedurally unfair. In circumstances in which the plaintiff himself elicited the evidence in question and then followed the forensic path that he did, the outcome of the Commissioner’s discretionary decision to refuse the application might not be seen as so clearly unreasonable as to demonstrate, without more, that the discretion miscarried. Put another way, it might not automatically follow from the fact that the evidence came as a surprise that it was procedurally unfair in the circumstances to deny the plaintiff an opportunity to rebut the evidence which he himself elicited. The plaintiff might be thought to be fixed with the result of following the forensic path that he did.
If that were so, there could be no objection of procedural unfairness in the Commissioner’s relying on the Inspector’s evidence that it was possible to access the balcony via the internal staircase.
However, as explained above, the Commissioner did not use the Inspector’s evidence about stair access in making her dispositive findings. It is thus not necessary to determine whether the way in which the plaintiff conducted the hearing before the Commissioner would have been decisive in its own right on the question of procedural unfairness. Since the plaintiff was self-represented, it is preferable not to do so. Although a self-represented litigant will be fixed with their own forensic choices, the court will necessarily be slower to attribute a forensic choice to the conduct of a self-represented litigant than to one represented by solicitors and counsel.
Ultimately, the procedural fairness complaint fails for two reasons that are independent of the plaintiff’s conduct of the hearing.
The Commissioner’s dispositive findings were not ultimately based on the “surprise” evidence in any event.
This is a case where it would be affirmatively concluded that had the alleged error not been made, the outcome would inevitably have been the same.
It should finally be noted that in his written submissions, the plaintiff went much further than a procedural fairness complaint. In chief he submitted that he had corresponded with the solicitor for SafeWork NSW “with conclusive proof that the Inspector had lied to the Commissioner”: at PSA [63]. That “proof” turned essentially on the objective impossibility of access via the internal staircase. In reply, he submitted at [6f)] that his 21 October 2024 affidavit “provides cogent evidence proving that the Inspector lied to the Commissioner” and at [7b)] that “the Court should be satisfied that the Inspector is an unmitigated liar and should be accorded no credit whatsoever.” Those allegations were serious, unnecessary (given the nature of the procedural fairness complaint) and inappropriate. The plaintiff’s affidavit of 21 October 2024 has not been admitted to prove the truth of the contents of those allegations. These submissions must be rejected.
So too must be the plaintiff’s submissions that the solicitor for SafeWork NSW had any duty as an officer of the Court to bring the plaintiff’s correspondence to the attention of the Commissioner. That submission misconceives the function of an opposing party’s solicitor. Had there been any material which warranted a re-opening application (which I do not accept), it would have been for the plaintiff to take such steps as were appropriate to make one.

Ground 6 is: “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.” There follow a number of subparagraphs and particulars, including to the effect that the Commissioner erred in accepting the evidence of the Inspector. In his written submissions, the plaintiff expands upon these points including by reference to various matters said to go to the Inspector’s credit, or otherwise to be inconsistent with the existence of a reasonable belief, and by identifying inferences that the plaintiff says the Commissioner should have drawn. In substance, the plaintiff sets out to re-run the case on the facts.
The basic problem with this Ground is that the question whether the Inspector held a reasonable belief for the purposes of s 195 was a question clearly within the Commissioner’s jurisdiction. The Commissioner understood the nature of the function entrusted to her. She considered the requirements of the statute, in particular, what constitutes a reasonable belief (at D[150]-[151]), and applied the statute to the facts as she found them. It was a matter for her to determine what evidence she accepted and the weight to be given to it.
That is enough to dispose of this Ground of complaint; that it does not raise any jurisdictional error.
But the plaintiff’s specific arguments as to error are unpersuasive in any event. For example, in relation to the finding at D[111] that the “Inspector formed a reasonable belief based on the equipment on the balcony that access to the balcony was possible”, the plaintiff submitted that there was no evidence that the Inspector formed a reasonable belief based on the equipment on the balcony: Tcpt, 12 March 2025, 67.8-10. But the Inspector’s evidence quoted at D[110], set out above, was as follows (emphasis supplied): “… I could see that you could make access to the balcony ‘cause there was a whole lot of equipment up there … so I formed the belief that you could make access.” The plaintiff’s submission requires the words “up there” to mean something other than on “the balcony”. That would be a strained reading of the evidence. It was certainly open to the Commissioner to read that evidence in the way she did.
It was also open to the Commissioner to find, as she did, that the Inspector gave evidence honestly; she said that she had a good deal of faith in his account of events because of the freedom with which he answered questions against the interest of SafeWork NSW: D[76]; see D[102]ff.
The plaintiff relied on evidence that arose out of the fact that after the Inspector gave his oral direction on 7 December 2020, the plaintiff had recorded part of their discussion. That included the Inspector saying, “You can do what you want when I’m not here”, and “If I’m not here I don’t observe it, I don’t care”: D[106]. The Commissioner dealt with that evidence commencing at D[102]; it was the evidence against interest to which she had referred at D[76]. Perhaps the low point was a passage in the Inspector’s oral evidence, quoted at D[107], in which he explained, in answer to a question asked by the Commissioner, that after spending much time in discussion with the plaintiff, he had been “at my limit”. He went on to say, “if an old bloke gets on top of a scaffold and wants to build his house and fall off and die and leave his missus and his kids, no skin off my nose, and I don’t even care”.
It was a matter for the Commissioner how she dealt with that evidence. There was no error in what she said at D[108]:

Visscher v Safework NSW

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment

JUDGMENT

Procedural background

Judicial review is confined to jurisdictional error by the Commissioner

The Inspector’s powers

The plaintiff’s case before the Commissioner

Jurisdictional error

The proceedings for judicial review in this Court

Ground 2

Ground 3

Ground 4

Ground 5

Ground 6

Ground 7

Ground 8

Grounds 9, 10, 11 and 12

Conclusion and orders

Parties

Legislation Cited (16)

Cases Cited (10)