Australia, June 18 -- New South Wales Land and Environment Court issued text of the following judgement on May 19:

1. The plaintiff was building a house pursuant to an owner-builder permit. For that purpose he had erected a scaffold at the front of the house. Someone disapproved of the scaffold. A SafeWork NSW Inspector (the Inspector) appeared on site. The Inspector gave the plaintiff an oral direction to stop any work on the scaffold and upper balcony until the plaintiff could demonstrate that the scaffold was compliant and built by a competent person. This was confirmed in a written prohibition notice (the Notice). Rather than comply with the Notice, the plaintiff challenged the Inspector's authority to issue it. The challenge eventually came before Commissioner McDonald of the New South Wales Industrial Relations Commission (the Commission), who decided against the plaintiff: Visscher v SafeWork NSW [2024] NSWIRComm 1012.

2. More than four years after the Notice was issued, this is the plaintiff's application for judicial review of the Commissioner's decision. No reviewable error has been shown. The summons must be dismissed.

Procedural background

3. The Notice was issued on 7 December 2020, by the Inspector, Mr Fripp, pursuant to s 195 of the Work Health and Safety Act 2011 (NSW) (WHS Act). On 14 December 2020, the plaintiff applied pursuant to s 224 of the WHS Act for "internal review" of the Inspector's decision to issue the Notice. On 24 December 2020, the internal reviewer affirmed the Inspector's decision. On 11 January 2021, the plaintiff applied to the Commission for "external review" pursuant to s 229 of the WHS Act. These reasons will return to s 224 below.

4. There followed a lengthy procedural history, as set out in the Commissioner's decision at D[21]-[55]. This included an application for leave to appeal to the Court of Appeal in relation to an application for production of documents: Visscher v SafeWork NSW [2023] NSWCA 164 (Meagher and Gleeson JJA) (Visscher CA). The plaintiff's application for external review eventually came on for hearing in November 2023. The Commissioner dismissed the external review and confirmed the internal review on 28 February 2024 (the Decision).

5. The plaintiff then sought leave to appeal to the Full Bench of the Commission. The Full Bench declined leave to appeal on 21 June 2024: Visscher v SafeWork NSW [2024] NSWIRComm 1038. Consistently with the reasoning in Wattie v Industrial Relations Secretary on behalf of the Secretary of the Department of Justice (No 2) [2018] NSWCA 124 at [181]-[186] per McColl JA (Macfarlan JA agreeing), the parties proceeded in this Court on the footing that in those circumstances the operative decision was that of Commissioner McDonald.

6. The proceedings for judicial review in this Court were commenced by summons filed on 16 August 2024. That was outside the three month period after the Decision for which the Uniform Civil Procedure Rules 2005 (NSW), r 59.10 provides. Accordingly, as the plaintiff recognises, he needs an extension of time.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196d7743031cf78a4178b3c9)

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