SafeWork NSW v Visscher (No 3); Visscher v SafeWork NSW (No 2) [2021] NSWIRComm 1099

SafeWork NSW v Visscher (No 3); Visscher v SafeWork NSW (No 2) [2021] NSWIRComm 1099

As at 7 December 2020, Mr Visscher's site was properly regarded as a 'workplace' under s 8 of the WHS Act, enlivening the Commission's jurisdiction and permitting the issuance of a prohibition notice under s 195. Public interest immunity attaches to documents capable of disclosing the identity of informants, and the Commissioner erred in ordering production of unredacted Photographs, which could circumstantially reveal the Requestor's identity.

Jurisdiction
Australia
Judgment Date
17 December 2021
Procedural Posture
Appeal and Cross Appeal / Full Bench Determination of Interlocutory Appeals
Outcome
Appeal upheld in part; cross-appeal dismissed
Legal Topics
['industrial Relations Commission Jurisdiction' 'owner Builder Issued With Prohibition Notice' "definition of 'workplace' Under WHS Act" 'public Interest Immunity' 'production of Documents Under Notice to Produce']
['employment and Industrial Law'] ['industrial Relations Commission Jurisdiction' 'owner Builder Issued With Prohibition Notice' "definition of 'workplace' Under WHS Act" 'public Interest Immunity' 'production of Documents Under Notice to Produce']

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Procedural Posture

Appeal and Cross Appeal / Full Bench Determination of Interlocutory Appeals

Legal Issues

  1. 1 ["Whether owner-builder's site was a 'workplace' under the Work Health and Safety Act 2011 (NSW)" 'Whether prohibition notice could be issued by inspector under s 195 of WHS Act' 'Whether documents and photographs produced under notice to produce should be redacted to protect identity of informer' 'Whether public interest immunity attaches to complaints made to SafeWork NSW']

Ratio Decidendi

As at 7 December 2020, Mr Visscher's site was properly regarded as a 'workplace' under s 8 of the WHS Act, enlivening the Commission's jurisdiction and permitting the issuance of a prohibition notice under s 195. Public interest immunity attaches to documents capable of disclosing the identity of informants, and the Commissioner erred in ordering production of unredacted Photographs, which could circumstantially reveal the Requestor's identity.

Court Disposition

Appeal upheld in part; cross-appeal dismissed

Orders

  • ['Leave to appeal granted' 'Appeal upheld regarding decision to order production of Photographs without redaction' 'Decision to produce Photographs without redaction quashed' 'Appeal otherwise dismissed' 'Leave to cross-appeal granted' 'Cross-Appeal dismissed' 'Stay ordered on 20 May 2021, as extended on 10 June...