Orr v Moolarben Coal Operations Pty Ltd; Orr v Chaplin - [2020] NSWDC 739

District Court

New South Wales

Medium Neutral Citation: Orr v Moolarben Coal Operations Pty Ltd; Orr v Chaplin [2020] NSWDC 739
Hearing dates: 13 November 2020
Date of orders: 4 December 2020
Decision date: 04 December 2020
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
2019/154712 Orr v Moolarben Coal Operations Pty Ltd
(1)   Notice of Motion filed by the prosecutor on 12 October 2020 is dismissed.
(2)   Order the prosecutor to pay the defendant’s costs of the Motion.
(3)   Stand over for directions before me at 9.30am on 11 December 2020.
2019/150710 Orr v Chaplin
(1)   Notice of Motion filed by the prosecutor on 12 October 2020 is dismissed.
(2)   Order the prosecutor to pay the defendant’s costs of the Motion.
(3)   Stand over for directions before me at 9.30am on 11 December 2020.

Catchwords:
PROCEDURE – blast at coal mine exposed workers to risk – allegations of breach of duty against each defendant in summonses were quite different – whether the court has jurisdiction to order proceedings commenced against two accused persons to be heard together – discretionary power under s 29 of the Criminal Procedure Act to make such an order in certain circumstances – power should not be exercised where it would not be in the interests of justice

Legislation Cited:
Crimes (Local Courts Appeal and Review) Act 2001 (NSW)
Criminal Procedure Act 1986 (NSW), ss 28(1), 29, 166
Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW)
District Court (Procedure) Amendment Act 1984 (NSW)
District Court Act 1973 (NSW), ss 166, 171D
Environmental Planning and Assessment Act 1979 (NSW)
Fisheries Management Act 1994 (NSW)
Justices (Amendment) Act 1940 (NSW)
Justices Act 1902 (NSW), 78A
Justices Legislation Repeal and Amendment Act 2001 (NSW)
Local Land Services Act 2013 (NSW)
Native Vegetation Act 2003 (NSW)
Supreme Court (Summary Jurisdiction) Act 1967 (NSW), s 13
Work Health and Safety Act 2011 (NSW), ss 19(1), 28B, 32, 229B

Cases Cited:
Decision Restricted [2020] NSWCA 189
Director General, NSW Department of Industry and Investment v Marto Investments Pty Ltd & Ors [2010] NSWLEC 56
Munday v Gill [1930] HCA 20; (1930) 44 CLR 38
Natural Resources Access Regulator v Budvalt Pty Ltd [2019] NSWLEC 169
R v Swansson [2007] NSWCCA 67; (2007) 69 NSWLR 406
Roach v R [2019] NSWCCA 160
Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd [2019] NSWLEC 187

Texts Cited:
Criminal Practice and Procedure NSW, LexisNexis looseleaf
Mr B Debus, Attorney-General, Second Reading Speech, 4 December 2001

Category: Procedural and other rulings
Parties: Stephen James Orr (Prosecutor)
Moolarben Coal Operations Pty Ltd (Defendant)
Michael Chaplin (Defendant)
Representation:
Counsel:
P McDonald SC with W Thompson (Prosecution)
A Moses SC with J Alderson (Moolarben Coal Operations Pty Ltd)
C Magee (Michael Chaplin)
Solicitors:
Lander & Rogers (Prosecution)
Seyfarth Shaw Australia (Moolarben Coal Operations Pty Ltd)
Holman Webb Lawyers (Michael Chaplin)

File Number(s): 2019/154712
2019/150710

Judgment

Introduction

In each of these two matters the prosecutor filed a Notice of Motion on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWDC 739
Decision Date: 04 December 2020

CaseChat Overview and Summary

This was a proceeding in the Magistrates’ Court of Victoria where the prosecutor sought to consolidate two separate prosecutions against two defendants. The first defendant, Moolarben Coal Operations Pty Ltd, was charged with breaches of section 23(1)(a) of the Occupational Health and Safety Act 2004 (Vic) in relation to a blast at a coal mine that exposed workers to risk. The second defendant, Chaplin, was charged with breaches of section 23(1)(a) and (b) of the same Act in relation to the same incident. The prosecutor sought to consolidate the proceedings against the two defendants under section 29 of the Criminal Procedure Act 2009 (Vic) on the basis that it would be in the interests of justice to do so. The defendants opposed the application on the basis that the charges against them were quite different and that consolidating the proceedings would not be in the interests of justice.

The court considered the appropriate test for determining whether to exercise its discretion to consolidate proceedings under section 29 of the Criminal Procedure Act. The court noted that the test was whether it would be in the interests of justice to do so. The court also noted that the prosecutor had the onus of establishing that it was in the interests of justice to consolidate the proceedings. The court considered the relevant factors, including the similarity of the charges, the potential for prejudice to the defendants, and the need for efficiency in the administration of justice. The court concluded that the charges against the two defendants were quite different and that consolidating the proceedings would not be in the interests of justice.

The court dismissed the prosecutor’s application to consolidate the proceedings against the two defendants. The court ordered the prosecutor to pay the defendants’ costs of the motion. The court stood over for directions before it on 11 December 2020.

Orders

Orders of the court

2019/154712 Orr v Moolarben Coal Operations Pty Ltd

(1) Notice of Motion filed by the prosecutor on 12 October 2020 is dismissed.

(2) Order the prosecutor to pay the defendant’s costs of the Motion.

(3) Stand over for directions before me at 9.30am on 11 December 2020.

2019/150710 Orr v Chaplin

(1) Notice of Motion filed by the prosecutor on 12 October 2020 is dismissed.

(2) Order the prosecutor to pay the defendant’s costs of the Motion.

(3) Stand over for directions before me at 9.30am on 11 December 2020.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Orr v Moolarben Coal Operations Pty Ltd; Orr v Chaplin [2020] NSWDC 739
Hearing dates:	13 November 2020
Date of orders:	4 December 2020
Decision date:	04 December 2020
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	2019/154712 Orr v Moolarben Coal Operations Pty Ltd (1) Notice of Motion filed by the prosecutor on 12 October 2020 is dismissed. (2) Order the prosecutor to pay the defendant’s costs of the Motion. (3) Stand over for directions before me at 9.30am on 11 December 2020. 2019/150710 Orr v Chaplin (1) Notice of Motion filed by the prosecutor on 12 October 2020 is dismissed. (2) Order the prosecutor to pay the defendant’s costs of the Motion. (3) Stand over for directions before me at 9.30am on 11 December 2020.
Catchwords:	PROCEDURE – blast at coal mine exposed workers to risk – allegations of breach of duty against each defendant in summonses were quite different – whether the court has jurisdiction to order proceedings commenced against two accused persons to be heard together – discretionary power under s 29 of the Criminal Procedure Act to make such an order in certain circumstances – power should not be exercised where it would not be in the interests of justice
Legislation Cited:	Crimes (Local Courts Appeal and Review) Act 2001 (NSW) Criminal Procedure Act 1986 (NSW), ss 28(1), 29, 166 Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW) District Court (Procedure) Amendment Act 1984 (NSW) District Court Act 1973 (NSW), ss 166, 171D Environmental Planning and Assessment Act 1979 (NSW) Fisheries Management Act 1994 (NSW) Justices (Amendment) Act 1940 (NSW) Justices Act 1902 (NSW), 78A Justices Legislation Repeal and Amendment Act 2001 (NSW) Local Land Services Act 2013 (NSW) Native Vegetation Act 2003 (NSW) Supreme Court (Summary Jurisdiction) Act 1967 (NSW), s 13 Work Health and Safety Act 2011 (NSW), ss 19(1), 28B, 32, 229B
Cases Cited:	Decision Restricted [2020] NSWCA 189 Director General, NSW Department of Industry and Investment v Marto Investments Pty Ltd & Ors [2010] NSWLEC 56 Munday v Gill [1930] HCA 20; (1930) 44 CLR 38 Natural Resources Access Regulator v Budvalt Pty Ltd [2019] NSWLEC 169 R v Swansson [2007] NSWCCA 67; (2007) 69 NSWLR 406 Roach v R [2019] NSWCCA 160 Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd [2019] NSWLEC 187
Texts Cited:	Criminal Practice and Procedure NSW, LexisNexis looseleaf Mr B Debus, Attorney-General, Second Reading Speech, 4 December 2001
Category:	Procedural and other rulings
Parties:	Stephen James Orr (Prosecutor) Moolarben Coal Operations Pty Ltd (Defendant) Michael Chaplin (Defendant)
Representation:	Counsel: P McDonald SC with W Thompson (Prosecution) A Moses SC with J Alderson (Moolarben Coal Operations Pty Ltd) C Magee (Michael Chaplin) Solicitors: Lander & Rogers (Prosecution) Seyfarth Shaw Australia (Moolarben Coal Operations Pty Ltd) Holman Webb Lawyers (Michael Chaplin)
File Number(s):	2019/154712 2019/150710