District Court
New South Wales
- Amendment notes
Medium Neutral Citation: SafeWork NSW v BSA Limited [2021] NSWDC 710 Hearing dates: 16 December 2021 Date of orders: 23 December 2021 Decision date: 23 December 2021 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Grant leave to the prosecutor to amend Annexure A to the Summons filed on 9 December 2020 in respect of particulars 9(g) and 9(h) in the terms of Attachment A to the Notice of Motion filed on 19 November 2021.
(2) Order the prosecutor to pay the defendant’s costs thrown away by reason of vacation of the hearing on 25 November 2021, on an indemnity basis.
(3) Order each party to pay its own costs of the prosecutor’s Notice of Motion filed on 19 November 2021.
Catchwords: CRIMINAL PROCEDURE – application to amend Summons – adequate explanation – unfair prejudice – fair trial – stage of proceedings – costs
Legislation Cited: Criminal Procedure Act 1985 (NSW), ss 15, 16(2), 20, 21, 63A, 247
Work Health and Safety Act 2011 (NSW), s 19(1), 32, 155
Cases Cited: R v Basha (1989) 39 A Crim R 337
R v Sepulveda [2003] NSWCCA 131
Rajendran v R [2010] NSWCCA 322
SafeWork NSW v Solveco Pty Ltd (No. 1) [2021] NSWDC 298
Category: Procedural rulings Parties: SafeWork NSW (Prosecutor)
BSA Limited (Defendant)Representation: Counsel:
Solicitors:
J Agius SC (Prosecutor)
A Moses SC with M Shume (Defendant)
SafeWork NSW (Prosecutor)
Seyfarth Shaw LLP
File Number(s): 2020/351444
Judgment
Introduction
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These proceedings arise out of an incident which occurred on 14 December 2018 at a private house at Malabar. The defendant BSA Limited (“BSA”) was a technical services company which installed equipment for satellite television.
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BSA was charged by a Summons filed on 9 December 2020 with a breach of its health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (“the WHS Act”) to ensure so far as is reasonably practicable the health and safety of workers while the workers were at work in the business or undertaking.
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The charge alleged that BSA failed to comply with that duty and the failure to comply with that duty exposed workers, in particular Jayden Hooper and Amber McKenzie, to a risk of death or serious injury contrary to s 32 of the WHS Act. The Summons pleaded that the death of Mr Hooper on 14 December 2018 was a manifestation of the risk of death or serious injury.
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The risk was pleaded in par 8 of the Summons as follows:
“There was a risk to a worker of death, shock or other serious injury caused directly or indirectly by electricity arising from: (i) Entering and working under the house and coming into contact with energised (live) Foxtel cable, copper pipe and/or other conductive materials; and/or (ii) Coming into contact in bed room 1 of the house with the Foxtel box including the rear ports, floor mount outlets, attached cables, television including the…
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- AGLC
- SafeWork NSW v BSA Limited [2021] NSWDC 710
- Case
- [2021] NSWDC 710
- Decision Date
CaseChat Overview and Summary
The court found that the prosecutor's explanation for the amendment was adequate, considering the information available at the time. It was noted that the prosecutor had exercised reasonable diligence in seeking to include the correct particulars. Regarding potential prejudice, the court concluded that the amendment would not unfairly prejudice BSA Limited, as the changes did not alter the fundamental nature of the charges. The court also found that the amendment would not affect the defendant's right to a fair trial, as BSA Limited had sufficient time to prepare its defence. The court further held that the stage of the proceedings did not preclude the amendment, given that the hearing had not yet commenced and BSA Limited had not yet presented its case.
Consequently, the court granted leave for the prosecutor to amend the summons in the specified terms. Additionally, the court ordered the prosecutor to pay BSA Limited’s costs incurred due to the vacation of the hearing on 25 November 2021, on an indemnity basis. Each party was also directed to bear its own costs relating to the prosecutor's notice of motion filed on 19 November 2021.
Orders
Orders of the court
(1) Grant leave to the prosecutor to amend Annexure A to the Summons filed on 9 December 2020 in respect of particulars 9(g) and 9(h) in the terms of Attachment A to the Notice of Motion filed on 19 November 2021.
(2) Order the prosecutor to pay the defendant’s costs thrown away by reason of vacation of the hearing on 25 November 2021, on an indemnity basis.
(3) Order each party to pay its own costs of the prosecutor’s Notice of Motion filed on 19 November 2021.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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