The Supreme Court of NSW has ruled in favour of SafeWork NSW after a challenge to the Industrial Relations Commission’s determination to uphold an Inspector’s decision to issue a Prohibition Notice, nearly four years later.
Visscher v SafeWork NSW [2025] NSWSC 489
‘“Incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction”, rather than a jurisdictional error’1
Procedural history
Prohibition notice
The plaintiff (Visscher) was building a house pursuant to an owner-builder permit and had erected a scaffold at the front of the house.
On 7 December 2020, someone disapproved of the scaffold and a SafeWork NSW Inspector (Inspector) attended the site. The Inspector orally directed Visscher to stop any work on the scaffold until he could demonstrate that it was compliant and built by a competent person.
The Inspector confirmed the direction in a written prohibition (Notice) under s 195 of the Work Health and Safety Act 2011 (NSW) (WHS Act). Visscher challenged the authority of the Inspector to issue the Notice.
Internal review
On 14 December 2020, Visscher sought an internal review of the Inspector’s decision under s 224 of the WHS Act. The internal reviewer affirmed the Inspector’s decision.
External review
On 11 January 2021, Visscher applied to the NSW Industrial Relations Commission (Commission) for an external review pursuant to s 229 of the WHS Act, which confers a function on the Commission for review of a reviewable decision made by SafeWork NSW or made on internal review. The matter came before Commissioner McDonald (Commissioner), who said that Visscher took umbrage with the Notice for the following three reasons:
- He considered that he was not subject to the provisions of the WHS Act because he was an owner-builder and the only person that worked on the site;
- He considered that the Inspector could not reasonably believe that an activity may occur that would involve a serious risk to the health and safety of a person emanating from an immediate or imminent exposure to a hazard, because the scaffold was “isolated”; and
- He alleged that his next-door neighbour likely made the report to SafeWork NSW about the scaffold not out of genuine concern, but to cause him delay and harm.
The Commissioner affirmed the Inspector’s decision and dismissed Visscher’s application (the Decision).2 Visscher then sought leave to appeal to the Full Bench of the Commission, which was refused.3
Judicial review
On 16 August 2024, nearly four years after the Notice was issued, Visscher commenced judicial review proceedings in the Supreme Court of NSW (Supreme Court). As the Supreme Court proceedings were commenced outside the requisite three-month period after the Decision4, Visscher sought an extension of time, which was granted given it was not opposed by SafeWork NSW and there was no prejudice to any party.
Supreme Court proceedings – judicial review
Jurisdictional error
The Supreme Court reiterated that judicial review under s 69 of the Supreme Court Act 1970 (NSW) (Supreme Court Act) is limited to assessing whether a jurisdictional error was made by the Commissioner in conducting an external review under s 229 of the WHS Act.
To succeed, Visscher was required to establish that the Commissioner exceeded the authority conferred by s 229 of the WHS Act. While Visscher challenged the Inspector’s power to issue the Notice, the Court distinguished between jurisdictional error arising from the Inspector’s actions and jurisdictional error arising from the Commissioner’s review.
The Court emphasised that the determination of whether an error is jurisdictional, that is whether the error resulted in the decision made to lack legal force, is a matter of statutory construction. The Supreme Court reviewed the functions conferred on the Commission by the Industrial Relations Act 1996 (NSW) (Industrial Relations Act), namely that:
- pursuant to sections 162 and 163 of the Industrial Relations Act, the Commissioner may determine its own procedure which involves not being 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; and
- pursuant to section 175 of the Industrial Relations Act, the Commission has the function to interpret, apply or operate any relevant law or instrument to determine a question within a matter.
The Supreme Court found that Parliament has conferred authority on the Commission to determine at least some questions of law, and to decide those questions wrongly.5 Issues like misinterpreting legal principles, identifying the wrong issue, or relying on irrelevant material do not, of themselves, constitute jurisdictional error. On that basis, any submissions by Visscher that refer to the Commissioner misinterpreting or misapplying legal principles are an error of law, not jurisdiction, and therefore, were rejected.
The grounds for judicial review
Visscher made 12 grounds for judicial review, some of which were abandoned, most of which the Supreme Court deemed an error of law, and all of which failed. Two examples are set out below:
Ground 2: Visscher submitted that a jurisdictional error occurred, on the ground that procedural fairness was denied when the Commissioner erred in taking into account three irrelevant documents (being NSW Fair Trading documents relating to the owner-builder permit regime and SafeWork Australia’s interpretive guidelines on the meaning of a ‘person conducting a business or undertaking’).
The Supreme Court found that the Commissioner referred to these documents as a means of informing herself on the matter, which she was expressly authorised to do by reason of s 163(1)(b) of the Industrial Relations Act, which allows the Commissioner not to be bound by the rules of evidence and inform herself on any matter in any way that she considers to be just.
The Court reasserted that Visscher disregarded the distinction between the existence of the facts necessary to engage the Inspector’s power and the question of jurisdictional error by the Commissioner. Moreover, the question as to the validity of the Notice had nothing to do with the jurisdiction of the Commission.
Ground 6: Visscher submitted that the Commissioner erred in finding that the Inspector held a reasonable belief to issue the Notice by accepting the Inspector’s evidence and giving weight to it.
The Supreme Court held that the question of whether the Inspector had a reasonable belief for the purposes of s 195 of the WHS Act was a question within the Commissioner’s jurisdiction. To answer this question, the Commissioner had to determine what evidence she accepted and the weight to be given to it. There was no jurisdictional error affecting the Commissioner’s finding as to the reasonableness of the Inspector’s belief, and the Commissioner understood the nature of the function entrusted to her.
The Court again expressed that even if there had been an error in the finding, it would be an error made within jurisdiction.
Judgment
The Supreme Court ordered that the summons be dismissed.
Key takeaways
The decision confirms that the jurisdiction of the NSW Industrial Relations Commission on a merits review of a Notice issued by SafeWork NSW is broad. The Commission can review, confirm, vary or revoke the decision concerned.
It also highlights the importance of identifying the difference between jurisdictional errors and errors of law, which are not to be confused. For judicial review by the Supreme Court of a decision by the Commission, it is necessary to identify an error and determine whether, as a matter of statutory construction, the Commission was not authorised to decide on that matter.
Where a party wishes to challenge an inspector’s actions, the Supreme Court will distinguish between jurisdictional error arising from those actions, and jurisdictional error arising from a Commissioner’s review. It will only intervene where it determines that there is a jurisdictional error, not an error within jurisdiction.
For more information, please contact Michael Tooma.
1Visscher v SafeWork NSW [2025] NSWSC 489 [34].
2Visscher v SafeWork NSW [2024] NSWIRComm 1012.
3Visscher v SafeWork NSW [2024] NSWIRComm 1038.
4Uniform Civil Procedure Rules 2005 (NSW), r 59.10.
5Ibid [42]. See also, Secretary of the Ministry of Health v Australian Paramedics Association (NSW) [2022] NSWSC 1431, [179].
