Orr v LakeCoal Pty Ltd

District Court

New South Wales

Medium Neutral Citation:

Orr v LakeCoal Pty Limited [2019] NSWDC 178

Hearing dates:

14 May 2019

Date of orders:

16 May 2019

Decision date:

16 May 2019

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   I find that the prosecutor does not need leave to continue this prosecution.

 

(2) Pursuant to r 53.28 of the District Court Rules 1973, the prosecutor is granted leave to tender the following expert reports as the evidence-in-chief of those expert witnesses:

 

(a)   Report of Mr Jason Wagstaffe, engineer and workplace safety risk management expert, dated 3 July 2018;

 

(b)   Report of Mr Martin Burns, registered land surveyor, undated but finalised 3 December 2018;

 

(c)   Report of Ms Judy Turnbull, metallurgist, dated 7 December 2018;

 

(d)   Report of Mr Tim White, forensic mechanical engineer, dated 7 December 2018.

 

(3) Pursuant to r 53.28 of the District Court Rules 1973, the prosecutor is granted leave to file affidavits of the following witnesses and to tender those affidavits as the evidence-in-chief of those witnesses:

 

(a)   Inspector Gregory Delmenico;
(b)   Inspector Steven Bath;
(c)   Inspector Andrew Tull; and
(d)   Inspector Timothy Flowers.

 

(4)   The prosecutor shall provide to the court a hearing plan setting out the proposed order of witnesses by 28 May 2019.

 (5)   Liberty to apply on three days notice.

Catchwords:

CORPORATIONS - company subject to creditors’ voluntary winding up – whether prosecutor needs leave to continue prosecution – s 471B, s 500(2) Corporations Act 2001 (C’th)

Legislation Cited:

Corporations Act 2001 (C’th)
District Court Rules 1973
Occupational Safety and Health Act 1984 (WA)
Work Health and Safety Act 2011

Cases Cited:

WorkCover Authority of New South Wales (Inspector Maltby) v Josef & Sons Contracting Pty Ltd (In Liquidation) [2002] NSWIRComm 226
Worksafe Western Australia Commissioner v Australian Countertop Pty Limited (In Liquidation) [2014] WASC 413

Category:

Procedural and other rulings

Parties:

Stephen James Orr (Prosecutor)
LakeCoal Pty Limited (Defendant)

Representation:

Counsel:
K Nomchong SC (Prosecutor)

  Solicitors:
Lander & Rogers (Prosecutor)

File Number(s):

2018/23681

Judgment

Introduction

1. This prosecution under the Work Health and Safety Act 2011 is listed for an undefended hearing before me commencing on 3 June 2019. Senior counsel for the prosecutor appeared before me on 14 May 2019 to raise two issues in preparation for the trial. The first concerned the corporate status of the defendant, and whether leave would need to be sought to continue these proceedings against it. The second matter concerned directions for the matter of presentation of evidence at the undefended hearing.

Corporate status of the defendant

2. Pursuant to a direction made on 14 May 2019, the prosecutor filed an affidavit of Mr Battagello solicitor dated 15 May 2019, setting out evidence in relation to the corporate status of the defendant. In summary, the affidavit proves the following matters:

1. Prior to 5 March 2019 the defendant was a company in external administration, under the control of an administrator;

2. On 5 March 2019 a special resolution of the creditors of the defendant was passed, resolving…