Visscher v SafeWork NSW (No.2) [2022] NSWSC 1253

Visscher v SafeWork NSW (No.2) [2022] NSWSC 1253

SafeWork NSW did not establish the high degree of certainty required for summary dismissal. The plaintiff had an arguable case that the Full Bench's jurisdiction to hear the leave application and appeal arose from ss 187 and 188 of the Industrial Relations Act 1996, and that its determination of adverse factual matters about the Prohibition Notice and the application of the Work Health and Safety Act 2011 may have been an exercise of power beyond what was necessary or permitted, arguably amounting to jurisdictional error. Because at least part of the Summons was arguable, the application for summary dismissal of the whole proceeding was dismissed.

Jurisdiction
Australia
Judgment Date
06 July 2022
Procedural Posture
Judicial Review Proceedings Under S 69 of the Supreme Court Act 1970 / First Defendant's Notice of Motion Seeking Summary Dismissal Under R 13.4 of the Uniform Civil Procedure Rules 2005
Outcome
The first defendant's application for summary dismissal was dismissed.
Legal Topics
['summary Dismissal' 'judicial Review' 'jurisdictional Error' 'industrial Relations Commission of New South Wales' 'public Interest Immunity' 'prohibition Notice']
['civil Procedure' 'employment and Industrial Law' 'administrative Law' 'work Health and Safety'] ['summary Dismissal' 'judicial Review' 'jurisdictional Error' 'industrial Relations Commission of New South Wales' 'public Interest Immunity' 'prohibition Notice']

Case Brief

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Procedural Posture

Judicial Review Proceedings Under S 69 of the Supreme Court Act 1970 / First Defendant's Notice of Motion Seeking Summary Dismissal Under R 13.4 of the Uniform Civil Procedure Rules 2005

Legal Issues

  1. 1 ["Whether the plaintiff's Summons for judicial review should be summarily dismissed under r 13.4 of the Uniform Civil Procedure Rules 2005." 'Whether the plaintiff had an arguable case that the Full Bench of the Industrial Relations Commission made a jurisdictional error by determining factual matters about whether he was a person conducting a business or undertaking and whether the Prohibition Notice was validly issued.' 'Whether the Full Bench had jurisdiction under ss 187 and 188 of the Industrial Relations Act 1996 to hear and determine the application for leave to appeal and appeal from the interlocutory decision of a single Commissioner.']

Ratio Decidendi

SafeWork NSW did not establish the high degree of certainty required for summary dismissal. The plaintiff had an arguable case that the Full Bench's jurisdiction to hear the leave application and appeal arose from ss 187 and 188 of the Industrial Relations Act 1996, and that its determination of adverse factual matters about the Prohibition Notice and the application of the Work Health and Safety Act 2011 may have been an exercise of power beyond what was necessary or permitted, arguably amounting to jurisdictional error. Because at least part of the Summons was arguable, the application for summary dismissal of the whole proceeding was dismissed.

Court Disposition

The first defendant's application for summary dismissal was dismissed.

Orders

  • ['Dismiss the Notice of Motion filed by the first defendant on 14 March 2022.']