SafeWork NSW v BSA Limited - [2021] NSWDC 710

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 Lykouras [2005] NSWCCA 8
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:
J Agius SC (Prosecutor)
A Moses SC with M Shume (Defendant)
Solicitors:
SafeWork NSW (Prosecutor)
Seyfarth Shaw LLP

File Number(s): 2020/351444

Judgment

Introduction

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.
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.
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.
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…

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.

Continue reading SafeWork NSW v BSA Limited

Details

AGLC: SafeWork NSW v BSA Limited [2021] NSWDC 710
Case: [2021] NSWDC 710
Decision Date: 23 December 2021

CaseChat Overview and Summary

SafeWork NSW filed an application against BSA Limited, a company, in the context of a criminal proceeding. The central dispute revolved around the amendment of the summons to include additional particulars, which BSA Limited contested on the basis of potential prejudice to its defence and the stage of the proceedings. The matter was heard in the Industrial Court of New South Wales. The primary legal issues the court had to address were whether the prosecutor provided an adequate explanation for the amendment, whether the amendment would unfairly prejudice BSA Limited, and if the amendment would affect the defendant’s right to a fair trial. Furthermore, the court examined the stage of the proceedings to determine whether it was appropriate to allow the amendment and the impact on costs allocation.

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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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 Lykouras [2005] NSWCCA 8 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: J Agius SC (Prosecutor) A Moses SC with M Shume (Defendant) Solicitors: SafeWork NSW (Prosecutor) Seyfarth Shaw LLP
File Number(s):	2020/351444