New South Wales Resources Regulator v Whitehaven Coal Mining Ltd

Case •

[2025] NSWIC 6

•

31 July 2025

No judgment structure available for this case.

Industrial Court


New South Wales

Medium Neutral Citation: New South Wales Resources Regulator v Whitehaven Coal Mining Ltd [2025] NSWIC 6
Hearing dates: 25 July 2025
Date of orders: 31 July 2025
Decision date: 31 July 2025
Before: Paingakulam J
Decision:

See paragraph [60]

Catchwords:

CRIMINAL LAW — work health and safety — offences — category 2 — case management —whether the Court should order preliminary disclosure — interests of justice — matter at more complex end of the spectrum — orders sought by prosecutor will avoid disruption — no unfairness to defendant — orders made

Legislation Cited:

Criminal Procedure Act 1986 (NSW)

Criminal Procedure Amendment (Summary Proceedings Case Management) Bill 2011

Evidence Act 1995 (NSW)

Industrial Relations Amendment Act 2025 (NSW)

Industrial Relations Amendment Bill 2025 (NSW)

Work Health and Safety Act 2011 (NSW)

Cases Cited:

Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22

Landsman v R (2014) 88 NSWLR 534; [2014] NSWCCA 328

Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20

Pambula District Hospital v Herriman (1988) 14 NSWLR 387

SafeWork NSW v JBS Australia Pty Ltd [2023] NSWDC 116

Secretary, Department of Planning and Environment v Harris [2024] NSWCCA 88

State Pollution Control Commission v Australian Iron & Steel Pty Ltd (No 2) (1992) 29 NSWLR 487

Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121

Sutherland Shire Council v Benedict Industries Pty Ltd (No 2) [2015] NSWLEC 39

The Queen v Chin (1985) 157 CLR 671; [1985] HCA 35

Texts Cited:

Industrial Court Criminal Practice Note 1

Category:Procedural rulings
Parties: New South Wales Resources Regulator (Prosecutor)
Whitehaven Coal Mining Ltd (Defendant)
Representation:

Counsel:
R Mathur SC / G Diggins (Prosecutor)
C Magee / E Aitken (Defendant)

Solicitors:
Holding Redlich (Prosecutor)
Seyfarth Shaw (Defendant)
File Number(s): 2024/416298
Publication restriction: Nil

JUDGMENT

  1. Whitehaven Coal Mining Ltd (Whitehaven) has pleaded not guilty to an offence that, as a person who had a work, health and safety duty pursuant to s 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act) it failed to comply with that duty and thereby exposed workers, in particular Mr Luke Randall, to a risk of death or serious injury contrary to s 32 of the WHS Act. On 26 May 2025, the matter was set down before me for hearing commencing 11 May 2026, with an estimate of four weeks.

  2. Pursuant to s 247I of the Criminal Procedure Act 1986 (NSW) (CPA), the prosecutor seeks orders for pre-trial disclosure under ss 247J, 247K and 247L of the CPA. The prosecutor accepts that, in relation to orders under s 247K of the CPA, the relevant orders are those in s 247K(a)–(f). The defendant opposes the orders sought by the prosecutor and contends that it is not in the interests of justice for the Court to make those orders which represent the highest level of case management, appropriate for complex cases. The defendant seeks an alternative form of case management orders.

  3. I have determined to make orders which include the disclosure orders sought by the prosecutor, with some minor timetable adjustments. My reasons follow.

History of the proceedings

  1. The Application to Commence Proceedings and Summons in this matter were filed by the New South Wales Resources Regulator on 8 November 2024. The Summons was issued by the Court later that day with a first return date of 17 February 2025. On 14 February 2025, the first mention date was vacated and the matter was listed for second mention on 28 April 2025. Orders were also made imposing a timetable for the defendant to seek and obtain further particulars from the prosecutor.

  2. At the second mention of the matter on 28 April 2025, the defendant entered a plea of not guilty to the offence charged. The matter was then adjourned for further mention to allow the parties to negotiate appropriate case management directions.

  3. On 26 May 2025, counsel for both parties informed the Court that they were unable to reach agreement on appropriate case management directions for the matter. There were a number of points of disagreement between the parties. The most significant disagreement concerned the prosecutor’s proposed order that the defendant provide it with a copy of the expert evidence on which it intends to rely at hearing. The parties provided the Court with competing proposed case management orders and the matter was set down for an interlocutory hearing to resolve the issue.

  4. Since that time, both parties have updated the orders that they seek. The prosecutor now proposes that Court make the following orders:

1. Pursuant to section 247I of the Criminal Procedure Act 1986 (NSW) (CPA), the Prosecutor is to give the Defendant notice in accordance with section 247J of the CPA by 22 August 2025.

2. Pursuant to section 247I of the CPA, the Defendant is to give to the Prosecutor notice of the defence response to the Prosecutor’s notice in accordance with section 247K of the CPA by 7 November 2025.

3. Pursuant to section 247I of the CPA, the Prosecutor is to give to the Defendant notice of the prosecution response to the defence response in accordance with section 247L of the CPA by 6 February 2026. Without limiting the requirements in section 247L, such notice is to include:

a.   a revised Statement of Facts in reply to any proposed amendments indicated by the Defendant in relation to any proposed agreed Statement of Facts; and   

b.   a copy of any chart or explanatory material that the Prosecutor proposes to adduce at the defended hearing.

4.   The Prosecutor is to serve on the Defendant but not file a draft index to the Prosecutor’s tender bundle which will specify for each document the Volume, Tab and page number(s) where the document is to be found in the Brief of Evidence by 6 March 2026.

5.   The parties are to hold a preliminary conference on or before 30 March 2026:

a.   to determine the scope of the matters that are in issue;

b.   for the Prosecutor to confirm the witnesses it proposes to call at hearing;

c. to determine whether any statements of witnesses that the Prosecutor proposes to adduce at hearing can be dealt with in whole or in part pursuant to s 190 of the Evidence Act 1995 (NSW) (Evidence Act);

d. to settle any Agreed Facts pursuant to s 191 of the Evidence Act;

e.   for the Defendant to confirm which witnesses it requires for cross-examination;

f.   for the Defendant to indicate whether objection is taken to any of the documents listed in the draft index to the Prosecutor’s tender bundle and the basis for the objection(s); and

g.   to determine whether ·either party disputes the admissibility of the expert evidence, and the basis of the objection(s).

6.   Prosecutor is to file and serve by 4pm, 13 April 2026:

a.   an electronic copy of a paginated bundle comprising an index, any agreed facts, and those documents and statements of witnesses to which no objection is taken, or objection is taken and has otherwise been determined; and

b.   a second electronic copy of a paginated bundle comprising an index and those documents that the Prosecutor intends to tender to which objection is taken.

7.   The parties have liberty to apply.

  1. The defendant now proposes an alternative form of orders as follows:

1. Prosecutor is to file and serve a revised Statement of Facts, if any, for the purpose of reaching agreement with the Defendant on agreed facts within the meaning of s 191 Evidence Act 1995 (NSW) by 4pm on 5 September 2025.

2.   If any expert witness is proposed to be called by the Prosecutor at the defended hearing, a copy of each report by the expert witness must be filed and served by 4pm on 5 September 2025.

3.   Prosecutor is to provide to the Defendant a copy of any chart or explanatory material to be relied upon by 4pm on 5 September 2025.

4.   Defendant is to notify the Prosecutor of any facts in the Statement of Facts or revised Statement of Facts which are agreed by 4pm on 10 October 2025.

5.   Prosecutor is to provide to the Defendant a statement or an outline of the evidence to be relied upon for each witness the Prosecutor intends to call (other than expert witnesses referred to in Order 3) by 4pm on 31 October 2025.

6.   Prosecutor is to serve on the defendant but not file a draft index to the prosecutor’s tender bundle which will specify for each document the Volume, Tab and page number(s) where the document is to be found in the Brief of Evidence by 4pm on 7 November 2025.

7.   Parties are to hold a preliminary conference:

a.   to determine the scope of the matters that are in issue;

b.   for the prosecutor to confirm the witnesses it proposes to call at hearing;

c. to determine whether any statements of witnesses that the prosecutor proposes to adduce at hearing can be dealt with in whole or in part pursuant to s 190 the Evidence Act 1995 (NSW);

d. to settle any Agreed Facts pursuant to s 191 of the Evidence Act 1995 (NSW);

e.   for the defence to confirm which witnesses it requires for cross-examination; and

f.   for the defence to indicate whether objection is taken to any of the documents listed in the draft index to the prosecutor’s tender bundle

by 6 March 2026.

8.   At least two weeks before the preliminary conference, the defendant is to advise the prosecutor of its position in relation to each of the matters to be addressed at the case conference.

9.   Prosecutor is to file and serve:

a.   an electronic copy of a paginated tender bundle comprising an index, any agreed facts, and those documents and statements of witnesses to which no objection is taken by 4pm 20 March 2026; and

b.   a second electronic copy of a paginated bundle comprising an index and those documents that the prosecutor intends to tender to which objection is taken by 4pm 20 March 2026.

10.   The matter will be listed for a readiness hearing on 13 April 2026.

  1. The orders sought by the defendant largely reflect the Usual Directions for WHS Defended Hearings which are Annexure A to Industrial Court Criminal Practice Note No.1 (Usual Directions). They omit:

  1. Usual Direction 7, which requires a defendant to file and serve any expert evidence on which it intends to rely by the nominated deadline;

  2. Usual Direction 8, which requires the prosecutor to file any expert evidence in reply by the nominated deadline;

  3. That portion of Usual Direction 10(f) together with Usual Direction 11, which require a defendant to notify the prosecutor of the basis for their objection to documents listed in the prosecution’s tender bundle two weeks before a preliminary conference, and to settle that issue at the preliminary conference;

  4. Usual Direction 10(g) together with Usual Direction 11, which require the parties to notify each other whether either party disputes the admissibility of the expert evidence relied upon by the other and the basis for any such objection two weeks before a preliminary conference, and to settle that issue at the preliminary conference; and

  5. Usual Direction 14, which requires parties to file an outline of submissions addressing objections to the tender of evidence a week before the hearing.

Relevant legislation and applicable principles

  1. The case management provisions for summary offences are found in Chapter 4 Part 5 Division 2A of the CPA (Division 2A). The Industrial Relations Amendment Act 2025 (NSW), through the incorporation of ss 170(4)(c) and 247A(c) into the CPA, conferred power on the Industrial Court to make orders pursuant to Division 2A from 1 May 2025. The purpose of Division 2A is stated in s 247B:

247B   Purpose

(1) The purpose of this Division is to reduce delays in proceedings before the court in its summary jurisdiction by:

(a) requiring certain preliminary disclosures to be made by the prosecution and the defence before the proceedings are heard, and

(b) enabling the court to undertake case management where suitable in those proceedings, whether on its own motion or on application by a party to the proceedings.

(2) Case management measures that are available to the court under this Division include the ordering of preliminary hearings, preliminary conferences and further preliminary disclosure. The court has a discretion in determining which (if any) of those measures are suitable in the proceedings concerned.

  1. Division 2A envisions two rounds of disclosure by the parties. The “first round” is described in ss 247E–247F and concerns the giving of “notice” of the prosecutor’s case and defence response. However, it is the “second round” of disclosure, referred to as “preliminary disclosure”, that is in issue before me. The relevant provisions are found in ss 247I–247L. The “second round” encapsulates the notice to be given under ss 247E and 247F, whilst also requiring further pre-trial disclosure by both the prosecutor and the defendant. The relevant provisions are as follows:

247I   Court may order preliminary disclosure in particular case

(1) After proceedings have been commenced, the court may make any or all of the following orders, but only if the court is of the opinion that it would be in the interests of justice to do so—

(a) order that the prosecutor is to give to the defendant notice in accordance with section 247J,

(b) order that the defendant is to give to the prosecutor notice of the defence response to the prosecution’s notice in accordance with section 247K,

(c) order that the prosecution is to give to the defendant notice of the prosecution response to the defence response in accordance with section 247L.

(2) The court may order preliminary disclosure under this section on the application of any party or on the court’s own initiative.

(3) The court may order preliminary disclosure by the defendant only if the court is satisfied that the defendant will be represented by an Australian legal practitioner.

(4) The court may limit preliminary disclosure to any specified aspect of the proceedings.

(5) Preliminary disclosure required by an order under this section is to be made in accordance with a timetable determined by the court.

247J Prosecution notice—court-ordered preliminary disclosure

For the purposes of section 247I(1)(a), the prosecution’s notice is to contain the following—

(a) the matters required to be included in the notice of the prosecution case under section 247E,

(b) a copy of any information, document or other thing in the possession of the prosecutor that would reasonably be regarded as adverse to the credit or credibility of the defendant,

(c) a list identifying the affidavits or statements of those witnesses who are proposed to be called at the hearing of the proceedings by the prosecutor.

247K   Defence response—court-ordered preliminary disclosure

For the purposes of section 247I(1)(b), the notice of the defence response is to contain the following—

(a) the matters required to be included in a notice under section 247F,

(b) a statement, in relation to each fact set out in the statement of facts provided by the prosecutor, as to whether the defendant considers the fact is an agreed fact (within the meaning of section 191 of the Evidence Act 1995) or the defendant disputes the fact,

(c) a statement, in relation to each matter and circumstance set out in the statement of facts provided by the prosecutor, as to whether the defendant takes issue with the matter or circumstance as set out,

(d) notice as to whether the defendant proposes to dispute the admissibility of any proposed evidence disclosed by the prosecutor and the basis for the objection,

(e) if the prosecutor disclosed an intention to adduce expert evidence at the hearing of the proceedings, notice as to whether the defendant disputes any of the expert evidence and which evidence is disputed,

(f) a copy of any report, relevant to the proceedings, that has been prepared by a person whom the defendant intends to call as an expert witness at the hearing of the proceedings,

(g) if the prosecutor disclosed an intention to adduce evidence at the hearing of the proceedings that has been obtained by means of surveillance, notice as to whether the defendant proposes to require the prosecutor to call any witnesses to corroborate that evidence and, if so, which witnesses will be required,

(h) notice as to whether the defendant proposes to raise any issue with respect to the continuity of custody of any proposed exhibit disclosed by the prosecutor,

(i) if the prosecutor disclosed an intention to tender at the hearing of the proceedings any transcript, notice as to whether the defendant accepts the transcript as accurate and, if not, in what respect the transcript is disputed,

(j) notice as to whether the defendant proposes to dispute the authenticity or accuracy of any proposed documentary evidence or other exhibit disclosed by the prosecutor,

(k) notice of any significant issue the defendant proposes to raise regarding an application for an appearance order, severability of the charges or separate trials or sentencing proceedings for the charges,

(l) notice of any consent the defendant proposes to give under section 184 of the Evidence Act 1995.

247L   Prosecution response to defence response—court-ordered preliminary disclosure

For the purposes of section 247I(1)(c), the notice of the prosecution response to the defence response is to contain the following—

(a) if the defendant has disclosed an intention to adduce expert evidence at the hearing of the proceedings, notice as to whether the prosecutor disputes any of the expert evidence and, if so, in what respect,

(b) if the defendant has disclosed an intention to tender any exhibit at the hearing of the proceedings, notice as to whether the prosecutor proposes to raise any issue with respect to the continuity of custody of the exhibit,

(c) if the defendant has disclosed an intention to tender any documentary evidence or other exhibit at the hearing of the proceedings, notice as to whether the prosecutor proposes to dispute the accuracy or admissibility of the documentary evidence or other exhibit,

(d) notice as to whether the prosecutor proposes to dispute the admissibility of any other proposed evidence disclosed by the defendant, and the basis for the objection,

(e) a copy of any information, document or other thing in the possession of the prosecutor, not already disclosed to the defendant, that might reasonably be expected to assist the case for the defence,

(f) a copy of any information, document or other thing that has not already been disclosed to the defendant and that is required to be contained in the notice of the case for the prosecution.

  1. The outworking of those disclosure requirements in the criminal proceedings to which they relate is then set out in ss 247M–247N, which provide as follows:

247M   Dispensing with formal proof

(1) If a fact, matter or circumstance was alleged in a notice required to be given to the defendant by the prosecutor in accordance with this Division and the defendant was required to give a defence response under section 247K but did not disclose in the response an intention to dispute or require proof of the fact, matter or circumstance, the court may order that—

(a) a document asserting the alleged fact, matter or circumstance may be admitted at the hearing of the proceedings as evidence of the fact, matter or circumstance, and

(b) evidence may not, without the leave of the court, be adduced to contradict or qualify the alleged fact, matter or circumstance.

(2) If evidence was disclosed by the prosecution to the defendant in accordance with this Division and the defendant was required to give a defence response under section 247K but did not disclose in the response an intention to dispute the admissibility of the evidence and the basis for the objection, the court may, by order, dispense with the application of any one or more of the following provisions of the Evidence Act 1995 in relation to the adducing of the evidence at the hearing of the proceedings—

(a) Division 3, 4 or 5 of Part 2.1,

(b) Part 2.2 or 2.3,

(c) Parts 3.2–3.8.

(3) The court may, on the application of a party, direct that the party may adduce evidence of 2 or more witnesses in the form of a summary if the court is satisfied that—

(a) the summary is not misleading or confusing, and

(b) admission of the summary instead of evidence from the witnesses will not result in unfair prejudice to any party to the proceedings.

(4) The court may, in a direction under subsection (3), require that one or more of the witnesses whose evidence is to be adduced in the form of a summary are to be available for cross-examination.

(5) The opinion rule (within the meaning of the Evidence Act 1995) does not apply to evidence adduced in accordance with a direction under subsection (3).

(6) The provisions of this section are in addition to the provisions of the Evidence Act 1995, in particular, section 190.

(7) This section does not affect section 4 (2) of the Evidence Act 1995.

247N   Sanctions for non-compliance with preliminary disclosure requirements

(1) Exclusion of evidence not disclosed The court may refuse to admit evidence in proceedings that is sought to be adduced by a party who failed to disclose the evidence to the other party in accordance with requirements for preliminary disclosure imposed by or under this Division.

(2) Exclusion of expert evidence where report not provided The court may refuse to admit evidence from an expert witness in proceedings that is sought to be adduced by a party if the party failed to give the other party a copy of a report by the expert witness in accordance with requirements for preliminary disclosure imposed by or under this Division.

(3) Adjournment The court may grant an adjournment to a party if the other party seeks to adduce evidence in the proceedings that the other party failed to disclose in accordance with requirements for preliminary disclosure imposed by or under this Division and that would prejudice the case of the party seeking the adjournment.

(4) Application of sanctions Without limiting the regulations that may be made under subsection (5), the powers of the court may not be exercised under this section to prevent a defendant adducing evidence unless the prosecutor has complied with the requirements for preliminary disclosure imposed on the prosecution by or under this Division.

(5) Regulations The regulations may make provision for or with respect to the exercise of the powers of a court under this section (including the circumstances in which the powers may not be exercised).

  1. Section 247I(1) provides that the Court is empowered to make such orders “only if the Court is of the opinion that it would be in the interests of justice to do so”. In SafeWork NSW v JBS Australia Pty Ltd [2023] NSWDC 116 (JBS), Russell DCJ ruled at [51] that in determining whether it is in the interests of justice to make orders for preliminary disclosure, “it would be an error to take into account matters of general application rather than matters specific to a particular case”.

What is in issue

  1. Whilst the parties have provided alternative proposed case management orders to the Court, the scope of the dispute between them is quite narrow. Prior to the hearing, there were three aspects of the prosecutor’s proposed orders to which the defendant objected:

  1. An order pursuant to s 247K(d) for the defendant to provide notification of objections to the prosecutor’s evidence and the basis for the objection;

  2. An order pursuant to s 247K(e) for the defendant to provide notification of objections to the prosecutor’s expert evidence and the basis for the objection; and

  3. An order pursuant to s 247K(f) for disclosure by the defence of expert material on which it intends to rely.

  1. At the hearing, it became apparent that the defendant was willing to provide to the prosecutor information in short form concerning its objections to the prosecutor’s evidence. The prosecutor had no objection to receiving that information in short form, provided that they were afforded liberty to apply in the event that they required a more fulsome explanation for the basis of any of the defendant’s objections in order to deal with them. The defendant accepted that the provision of objections in short form was sufficient for s 247M of the CPA to operate in respect of the evidence for which there was no objection.

  2. Accordingly, the dispute concerning the defendant notifying the prosecutor of its objections to the prosecutor’s evidence was confined to the timing for that process to occur. Indeed, order 7 of the orders proposed by the defendant provided for that process to occur. The defendant agreed to provide its information to the prosecutor no later than 20 February 2026, being two weeks before a proposed preliminary conference date. The prosecutor sought that information by 7 November 2025, to enable it to serve any evidence in response with sufficient time to afford the defendant procedural fairness at trial.

  3. The defendant objected to providing its expert evidence to the prosecutor at any point prior to the close of the prosecution case.

Prosecutor’s submissions

  1. In support of its position, the prosecutor relied on the evidence of Jessica Clare Alamyar, Senior Associate in the employ of Holding Redlich, acting for the prosecutor in these proceedings. Briefly, Ms Alamyar’s evidence outlined the history of the proceedings, including service of the brief on the defendant on 29 January 2025, the provision of access to that brief to the defendant’s solicitors on 3 March 2025 and the entry of the plea of not guilty by the defendant on 28 April 2025. Ms Alamyar set out the nature of the content of the more than 12,000 page prosecution brief, alongside a description of the approximately 31 witnesses whom the prosecutor intends to call. Ms Alamyar stated that as at the date of affirming her affidavit, she had not received any communications from the defendant’s solicitors attempting to narrow the issues for trial. Moreover, it was her belief that “all facts in the matter are to be taken as contested by the defendant” and “all witnesses may be required by the defendant for cross examination”.

  2. The Court also has before it the Statement of Facts proposed by the prosecutor, which extends to 14 pages.

  3. In arguing that their proposed case management orders should be made, the prosecutor submitted that JBS was incorrectly decided and should not be followed. Central to this argument was Russell DCJ’s reliance on Pambula District Hospital v Herriman (1988) 14 NSWLR 387 (Pambula) as authority for the proposition that only matters specific to a case should be considered in exercising the discretion under s 247I(1).

  4. The prosecutor submitted that a proper reading of Pambula does not support Russell DCJ’s construction of Division 2A. The prosecutor contrasted the statutory context of Pambula with that of Division 2A, noting in relation to the latter that the enactment of case management provisions for summary offences partially abrogated the longstanding common law rule against self-incrimination for defendants. In that regard, the prosecutor relied on the decision of Biscoe J in Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121 at [3] (Benedict No. 1).

  5. The prosecutor argued that the approach of Russell DCJ in JBS had “insufficient regard to the statutory purpose of the case management provisions in the CPA”, which provides the context for the discretion in s 247I and to which the Court of Criminal Appeal referred in Secretary, Department of Planning and Environment v Harris [2024] NSWCCA 88 at [81] (Harris).

  6. The prosecutor submitted that the discretion given to the Court by the term “in the interests of justice” is a “particularly broad one, albeit its exercise plainly must be governed by the statutory objects of the legislation by which it was granted”. In that context, matters of general application were said to be an essential consideration. In support of that submission, the prosecutor pointed to the ability of the court to make an order of its own motion under ss 247B(1)(b) and 247I(2).

  7. The prosecutor also relied on the observation in Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 at [74] that considerations of universal character and singular circumstances may sometimes merge. Such considerations were submitted to include matters such as trial length, subject matter and the reliance of one or both parties on expert evidence, all of which properly attracted judicial interest in case management.

  8. In the alternative and if the Court applied JBS, the prosecutor submitted that a number of specific considerations in the present case dictate a finding that the disclosure orders sought by the prosecution are in the interests of justice. First, the defendant is charged with an offence under the WHS Act, with such prosecutions being well regarded as being of greater complexity than many indictable offences. In this matter, the prosecution brief is over 12,000 pages long. Relevantly, the Second Reading Speech to the Criminal Procedure Amendment (Summary Proceedings Case Management) Bill 2011 (NSW) (2011 Bill) which introduced Division 2A identified “complex” matters as an example of where orders pursuant to s 247I may be appropriate.

  9. Second, the defendant is a corporation and has no right against self-incrimination. Third, the defendant is legally represented. Fourth, the prosecutor intends to call approximately 31 witnesses, resulting in an estimated four weeks of hearing time. That a hearing would be lengthy was also explicitly identified in the Second Reading Speech of the 2011 Bill as an example of when disclosure orders may be appropriate.

  10. Finally, the prosecutor pointed to its reliance upon expert evidence in this matter. The prosecutor submitted that if the defendant were to lead expert evidence without notifying the prosecutor in advance as to its contents, the prosecutor may need to seek leave to lead a case in reply, causing an adjournment and thereby extending the length of proceedings.

  11. The prosecutor further noted that, with the exception of expert evidence, the defendant was not being asked to disclose its defence or the evidence upon which it intends to rely. It noted the special situation of expert evidence as identified by Craig J in in Sutherland Shire Council v Benedict Industries Pty Ltd(No 2) [2015] NSWLEC 39 at [75] (Benedict No. 2). The prosecutor pointed out that it is commonplace in criminal matters for case management orders to require a defendant to “disclose” its expert evidence due to the difficulties in otherwise dealing with such evidence in an efficient manner.

  12. In oral submissions, the prosecutor pointed to order 7 of the defendant’s proposed orders as demonstrating its willingness to work with the prosecutor to determine the scope of the matters in issue. The prosecutor submitted that the only way to do that sensibly was to go through the steps as outlined in s 247K of the CPA. It submitted that, in the context of a matter with a 40 volume brief, determining the scope of the matters in issue could not sensibly be achieved by way of a preliminary conference, even with the notification by the defendant of its position two weeks beforehand.

Defendant’s submissions

  1. The defendant noted the discretionary nature of the preliminary disclosure regime set out in Division 2A of the CPA. It submitted that the orders sought by the prosecutor create a real risk of unfair prejudice to the defendant and are therefore not in the interests of justice in this matter. The alternative orders that the defendant proposed were said to be sufficient to facilitate the preparation of the matter for hearing.

  2. The defendant contended that “the principle of the common law is that the prosecution is to prove the guilt of an accused person”, citing Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 at [32] (Lee). Any requirement for the defendant to disclose evidence that it proposes to rely on prior to the closing of the prosecution case was said to be inconsistent with both this fundamental principle and the companion rule. Further, the defendant submitted that, consistent with the Second Reading Speech, pre-trial disclosure requirements imposed on a defendant aimed at improving efficiency should not come at the expense of fairness to defendants.

  3. The defendant submitted that the prosecutor’s argument that JBS was incorrectly decided and should not be followed failed to engage with the clear legislative position, reinforced in the Agreement in Principal Speech to the 2011 Bill, that “the pre-hearing disclosure provisions are not designed to be applied in every case”. The defendant submitted that the prosecutor must satisfy the Court that the interests of justice are served by making an order against the defendant under ss 247I and 247K of the CPA and, in particular, that the imposition of such orders would reduce the length of proceedings.

  4. The defendant submitted that the prosecutor has “started at the finish by seeking to have the highest level of case management applied” to the conduct of the hearing without reference to any factors in the interests of justice that are specific to these proceedings and warrant its application. The factors that were said to determine whether the prosecutor’s proposed orders are in the interests of justice include the competing interests of the parties, the application of common law principles regarding the burden of proof and the companion principle, and public interest and policy considerations regarding the efficient management of prosecutions and defendant’s’ rights.

  5. The defendant took issue with the basis upon which the prosecutor asserted that the matter was sufficiently complex to warrant the preliminary disclosure orders: the use of expert evidence, the length of the brief and the number of witnesses to be called. The defendant noted that the prosecutor had not referred to any aspect of its case that involves complex expert evidence and contended that the factual matrix of the matter was not complicated.

  6. The defendant also reiterated its willingness to engage in narrowing the issues through the settlement of agreed facts and the minimisation of witnesses required to give evidence at trial, with the potential to shorten the hearing time. It contended that experience shows that the prosecutor will not seek to adduce the entirety of the prosecution brief at trial and that even with a large volume of documents, there are usually only a small number that are central to the determination of the matter. Moreover, the frequency with which orders requiring disclosure by a defendant are made in criminal matters does not assist the Court in applying Division 2A.

  7. As to the specific orders sought by the prosecutor, as noted above, given the short form of objections which the defendant was prepared to offer and the prosecutor was prepared to accept, any dispute concerning an order under s 247K(d) was reduced to one of timing. The same applied in relation to any order made under s 247K(e).

  8. The defendant contended that the order sought by the prosecutor pursuant to s 247K(f) would require the disclosure of any expert report upon which the defendant sought to rely six months prior to the commencement of the hearing. Such disclosure was said to be unlikely to improve the efficiency of the hearing but would effectively require the defendant to assist the prosecutor to discharge its onus and may result in disclosure of the defendant’s case strategy more generally. It was also said to place the defendant at a forensic disadvantage by requiring it to decide whether to lead evidence well in advance of the close of the prosecutor’s case.

  9. In oral submissions, the defendant contended that the orders sought by the prosecutor which required the defendant to telegraph issues in the prosecutor’s expert evidence months ahead of the trial deprived the defendant of the opportunity to convince the Court to exclude any supplementary evidence on which the prosecutor might seek to rely, on the basis of fairness to the defendant.

  10. The defendant submitted that the alternative form of orders that it proposes, and which largely mirror the Usual Directions, will facilitate the narrowing of the issues between the parties and should be preferred.

Prosecutor’s submissions in reply

  1. In response, the prosecutor submitted that the decision in Lee is of little assistance to the Court in determining the present application. Further, the High Court recognised in Lee that even fundamental tenets of the common law yield to statutory provisions expressed clearly. Further, the prosecutor stated that the defendant has failed to engage with the fact that, pursuant to s 187 of the Evidence Act 1995 (NSW) (Evidence Act), the defendant as a corporation has no right against self-incrimination. In addition, the submission that the prosecution bears an onus “to satisfy the Court how the interests of justice are served by making an order against the defendant under ss 247I and 247K of the CPA” ignores that the Court can make such orders of its own motion.

  2. The prosecutor refuted the defendant’s contention that it must demonstrate a unique feature which distinguishes the present case from other WHS Act prosecutions to justify the case management orders that it seeks. The prosecutor submitted that such an argument disregards the application of Division 2A to prosecutions for summary offences in the Supreme Court of NSW and the Land and Environment Court of NSW. Further, it pointed to the 41 summary offences under the WHS Act outside of the general duty offences, which are often more limited in scope. The prosecutor accepted that it would not be in the interests of justice for the Court to make preliminary disclosure orders pursuant to Division 2A in many of these matters.

  3. The prosecutor rejected the assertion that the defendant would suffer forensic disadvantage if the orders sought were made, noting that, subject to leave, the prosecution would be entitled to lead a case in reply to address matters in the defence case that took it by surprise: The Queen v Chin (1985) 157 CLR 671 at 676; [1985] HCA 35 per Gibbs CJ and Wilson J. It reiterated that, with the exception of expert evidence, the orders impose no requirement for the defendant to disclose any evidence.

  4. The prosector reiterated that order 7 of the defendant’s proposed orders largely reflects the terms of s 247K of the CPA, save for the disclosure of the defendant’s expert evidence. In that regard, the only real issue between the parties was the question of timing. The prosecutor said that the 7 November 2025 timetable was not unreasonable in circumstances where the defendant had had the prosecution brief since January 2025. The prosecutor submitted that the defendant was aware of the prosecution case, both because it had the benefit of a 14 page Statement of Facts and because it had not sought any particulars of the prosecution case when afforded the opportunity to do so in February 2025.

  5. Finally, the prosecutor submitted that a practice which permits the defendant to serve its expert report at the close of the prosecution case is not a practice which is supported by any line of authority. The prosecutor reiterated that the early service of the expert report permits the prosecutor to respond with any supplementary evidence with sufficient notice to afford procedural fairness to the defendant.

Consideration

  1. I have set out the purpose of Division 2A, as set out in s 247B, at [10]. As noted by Biscoe J in Benedict No. 1 at [5]:

“The purpose and aims of Division 2A inform understanding of how its provisions should be interpreted and applied. An aim of Division 2A, in my view, is to narrow the issues to those that are genuinely in dispute. I think that is clear but, if it is not, then reference may be made to the Attorney General’s Agreement in Principle speech when introducing the Criminal Procedure Amendment (Summary Proceedings Case Management) Bill 2011 incorporating Division 2A, which confirms that that is so (emphasis added):

‘Used properly, the provisions of this Bill provide an opportunity to reduce hardship to parties and to witnesses, to prevent unnecessary costs and to allow parties and the court to spend their time and money on what really matters - that is, on those issues that are genuinely in dispute. The bill represents the Government’s commitment to a form of justice in which the real issues in dispute are determined without undue delay or expense.’”

  1. The decision of Biscoe J in Benedict No. 1 provides a comprehensive overview of Division 2A. In relation to the second round of the disclosure regime, his Honour stated at [11]:

“The second round of disclosure orders under s 247I is for the prosecutor to give the defendant a ‘prosecution’s notice’ in accordance with s 247J, the defendant to give the prosecutor a ‘notice of the defence response’ to the prosecution’s notice in accordance with s 247K - a substantial abridgment of the defendant’s right to silence - and the prosecutor to give a ‘notice of the prosecution response to the defence response’ in accordance with s 247L.”

  1. His Honour expanded on the operation of second round disclosure on defendants at [14]–[16]:

“The second round s 247K notice of the defence response constitutes a substantial abridgement of a defendant’s right to silence …

One of the aims and consequences of requiring a defendant to disclose under s 247K(d) its objections to the admissibility of prosecution evidence disclosed in the prosecution notice, is to empower the court to dispense with requirements for formal proof of prosecution evidence to which no objection is taken: s 247M.

The s 247L notice of the prosecutor’s response to the defence response is to contain (inter alia) notice as to whether the prosecutor disputes any proposed defence expert evidence and whether the prosecutor proposes to dispute the admissibility of disclosed defence evidence.”

  1. Plainly, the case management provisions for summary proceedings found in Division 2A empower the Court to make orders which significantly abrogate a defendant’s right to silence. When the case management provisions were first introduced into the CPA in 2011 by the 2011 Bill, the Second Reading Speech addressed the rights of a defendant in the following manner:

“ … The improvements in the efficiency of the court system should not come at the expense of unfairness to defendants. The extent to which this bill impacts on defendants is limited in several ways. First, the pre-hearing disclosure provisions are not designed to be applied in every case. They are designed so that the courts can employ them where appropriate. A court may consider these provisions appropriate, for example, in the more complex cases, or cases that could lead to a lengthy hearing.

Secondly, even if prehearing disclosure is ordered, the defendant retains control of whether to agree with the prosecutor on any aspect of its case. The defendant may still choose to object to all matters in the prosecution’s notice and retains the right to require the prosecutor to prove all aspects of the case. Finally, the consequences that flow from a failure by the defence to identify an issue at prehearing disclosure will only apply where the court decides in its discretion that this should be the case. The court would be unlikely to confine the defence to its position as at preliminary disclosure if it considered this to be unjust to a defendant.

In conclusion, this bill aims to reduce unnecessary delay and costs in the preparation for, and conduct of, hearing and sentencing proceedings in summary matters in the higher courts. I know that members opposite are interested to ensure that unnecessary delays and costs are not incurred, because this State does not have a lot of money to spend on lengthy cases. I’m advised that more than 6,000 criminal cases are on the books at the moment. This is a separate section; it deals with summary matters. The bill will reduce delay and costs by introducing a number of mechanisms that will give those involved the means to identify and resolve issues at the beginning of a matter rather than during the trial or sentencing proceedings. This will also assist judges to manage the proceedings by increasing their capacity to be informed of the relevant issues at an early stage.”

  1. The issue is whether it is in the interests of justice in this matter for case management orders to be made which require the defendant to disclose, well in advance of the hearing, both the basis for its objections to the prosecutor’s evidence and its own expert evidence. A related issue is whether, in the exercise of its discretion, the Court is permitted to consider matters universal to summary proceedings before it, or whether the relevant considerations are issues confined to the case in which the orders are sought.

  2. The resolution of this matter does not require me to address the correctness of Russell DCJ’s reliance on Pambula in JBS. Assuming that the interests of justice consideration is confined to factors particular to this matter, the evidence before the Court is that:

  1. The offence charged is a general duty offence. Such an offence is more complex than many of the offences in the WHS Act and indeed summary matters generally.

  2. The prosecution brief extends to more than 12,000 pages which is an indicator of complexity, even if significant portions of it are not tendered at hearing.

  3. The current hearing estimate of four weeks is lengthy in the context of summary prosecutions generally.

  4. The number of witnesses to be called by the prosecution also demonstrates a level of complexity to the issues. To adopt the submission of the defendant, even if many of those witnesses represent only “the number of pieces of the jigsaw puzzle that need to be presented to the Court to give the Court the whole picture”, the picture is one that has a large number of essential pieces.

  5. The recourse to expert evidence in this matter places it at the more complex end of the spectrum as expert evidence is not a feature of all WHS Act prosecutions or Division 2A summary prosecutions more generally.

  1. Accordingly, I am satisfied that the case management orders to be made in this case ought to reflect that it is a matter of some complexity.

  2. The essence of the defendant’s objection is that the making of the orders sought by the prosecutor will allow the prosecutor to bolster its case by dealing with the defence objections to its evidence well in advance of the hearing. In addition, it will provide the prosecutor with an understanding of the defence case with ample opportunity to obtain evidence in rebuttal. A related objection is the loss of the ability for the defendant to seek to have prosecution supplementary evidence excluded on the basis of fairness to the defendant. Justice Biscoe dealt squarely with those issues in Benedict No. 1 in two ways. Firstly, and relying on the decision of Gleeson CJ (Sheller JA and Badgery-Parker J agreeing) in State Pollution Control Commission v Australian Iron & Steel Pty Ltd (No 2) (1992) 29 NSWLR 487, his Honour observed at [27] that there was no automatic right for the prosecutor to file supplementary evidence:

“In my opinion, leave of the Court is required to file the prosecutor’s supplementary evidence. The Court has power to control and supervise the conduct of criminal proceedings, including so as to prevent unfairness. In an appropriate case, this extends to refusing to permit a prosecutor to lead evidence that is otherwise relevant and admissible, for example if the evidence would cause the defendant to suffer irremediable prejudice, or prejudice which could only be cured by an order that the Court is not willing to make, such as for an adjournment of the hearing…”

  1. Secondly, his Honour observed at [30] that any unfair prejudice flows from the plain effect of the legislation, which I have addressed at [48]. At [34], his Honour further noted that the provision of supplementary evidence to the defendant well in advance of the hearing afforded the defendant fair opportunity to deal with it. His Honour’s judgment to this effect was cited with approval by Sweeney J (N Adams J and RA Hulme AJ agreeing) in Harris at [80].

  2. As to the disclosure by the defendant of its expert report, it is plainly in the interests of justice for that to occur in advance of the hearing. As noted by the prosecutor, in the event that this were not to occur the prosecution would, subject to leave, be granted time to address matters in the defendant’s expert report that take it by surprise. This is precisely the sort of delay that the case management provisions were designed to address. As held by Craig J in Benedict No. 2 at [75]:

“It seems to me that the provisions of Div 2A, properly construed, are intended to address the situation described in the preceding paragraphs by ensuring that both prosecution and defence know the expert evidence that is likely to be led in each of their respective cases. Relevantly, the requirement that the defence disclose, in advance of trial, the report of an expert intended to be called, is the only evidence of any kind that the defendant can be required to disclose by way of preliminary disclosure (see “Note” to s 247N(1)). The manner in which expert evidence is to be addressed procedurally under Div 2A may therefore be seen to fall into a special or distinct category. It is reasonable to infer that the requirement for disclosure of such evidence by both sides was seen by the legislature as having the potential to reduce the time of trial, thereby fulfilling the purpose expressed in s 247B.”

  1. The defendant points to the considerable time that will elapse between the provision of the information that it is required to provide and the trial date. As noted in Benedict No. 1 at [33]–[34], the legislative scheme by which each party gives early notice of objections to the admissibility of evidence gives the other party the opportunity to meet the objections. Filing timely supplementary evidence-in-chief prevents disruption of the trial by the need for an adjournment to enable one party to deal with objections only taken at that point. This applies equally to the defence expert evidence as it does to the evidence on which the prosecutor relies.

  2. Further, as submitted by both parties, the consideration of the interests of justice in a particular matter involve balancing the various interests that are in play in the relevant context and may extend to a consideration of larger questions of legal principle, the public interest and policy considerations: Landsman v R (2014) 88 NSWLR 534; [2014] NSWCCA 328 at [69]. The need to maximise the efficient use of time in this Court is acute. The delay in obtaining a listing for a defended hearing upon entry of a not guilty plea in a WHS Act prosecution is presently at least 10 months. It is likely to increase significantly by the end of this year given the number of proceedings which have already commenced and for which a plea is yet to be entered. That context weighs heavily on the management of individual cases.

  3. Having recognised that this matter is one of some complexity, I also accept that the orders proposed by the defendant largely reflect the Usual Directions, save for those directions concerned with the expert evidence of both parties. I therefore gave consideration to making the Usual Directions, other than Usual Direction 14, with some extension of the timetable and with liberty to the parties to apply. In that regard, I note that the Usual Directions essentially include the orders set out at s 247K(a)–(f) of the CPA.

  4. However, I note the prosecutor’s concern that the volume of material in this matter is such that it is impractical to deal with the matters which are the subject of Usual Direction 10 by way of a discussion, even with advance notice of the defendant’s position as required by Usual Direction 11 and that what is instead required are orders pursuant to s 247K of the CPA. Notwithstanding that submission, and consistent with the orders proposed by both parties, I consider that there is benefit in retaining the order requiring the parties to participate in a preliminary conference to encourage discussion as to any issues that remain unresolved. Finally, given the overlap between the Usual Directions and s 247K of the CPA, it is the defendant who stands to benefit from the additional disclosure orders sought by the prosecutor.

  5. I am therefore satisfied that it is in the interests of justice in this matter to make orders largely consistent with those sought by the prosecutor.

Orders

  1. I make the following orders:

  1. Pursuant to s 247I of the CPA, the prosecutor is to give the defendant notice in accordance with s 247J of the CPA by 29 August 2025.

  2. Pursuant to s 247I of the CPA, the defendant is to give to the prosecutor notice of the defence response to the prosecutor’s notice in accordance with s 247K of the CPA by 14 November 2025.

  3. Pursuant to s 247I of the CPA, the prosecutor is to give to the defendant notice of the prosecution response to the defence response in accordance with s 247L of the CPA by 13 February 2026. Without limiting the requirements in s 247L, such notice is to include:

  1. a revised Statement of Facts in reply to any proposed amendments indicated by the defendant in relation to any proposed agreed Statement of Facts; and   

  2. a copy of any chart or explanatory material that the prosecutor proposes to adduce at the defended hearing.

  1. The prosecutor is to serve on the defendant but not file a draft index to the prosecutor’s tender bundle which will specify for each document the volume, tab and page number(s) where the document is to be found in the brief of evidence by 6 March 2026.

  2. The parties are to hold a preliminary conference on or before 30 March 2026:

  1. to determine the scope of the matters that are in issue;

  2. for the prosecutor to confirm the witnesses it proposes to call at hearing;

  3. to determine whether any statements of witnesses that the prosecutor proposes to adduce at hearing can be dealt with in whole or in part pursuant to s 190 of the Evidence Act;

  4. to settle any agreed facts pursuant to s 191 of the Evidence Act;

  5. for the defendant to confirm which witnesses it requires for cross-examination;

  6. for the defendant to indicate whether objection is taken to any of the documents listed in the draft index to the prosecutor’s tender bundle and the basis for the objection(s); and

  7. to determine whether either party disputes the admissibility of the expert evidence, and the basis of the objection(s).

  1. The prosecutor is to file and serve by 4pm on 13 April 2026:

  1. an electronic copy of a paginated bundle comprising an index, any agreed facts, and those documents and statements of witnesses to which no objection is taken, or objection is taken and has otherwise been determined; and

  2. a second electronic copy of a paginated bundle comprising an index and those documents that the prosecutor intends to tender to which objection is taken.

  1. The matter is listed for a readiness hearing at 2pm on 14 April 2026

  2. The parties have liberty to apply.

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Decision last updated: 31 July 2025

Cases Citing This Decision

0

Cases Cited

13

Statutory Material Cited

6

Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22
Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22