SafeWork NSW v BSA Limited (No. 4)

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v BSA Limited (No. 4) [2023] NSWDC 544

Hearing dates:

On the papers

Date of orders:

6 December 2023

Decision date:

06 December 2023

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Order that BSA Limited pay 85% of the prosecutor’s costs.

(2) The exhibits are returned.

Catchwords:

COSTS — work health and safety — prosecutor’s costs — relevant principles — relevance of negotiations between parties concerning the plea

Legislation Cited:

Criminal Procedure Act 1986 (NSW), ss 257B, 257G

Work Health and Safety Act 2011 (NSW)

Cases Cited:

Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338

SafeWork NSW v BSA Ltd (No. 2) [2023] NSWDC 73

SafeWork NSW v BSA Ltd (No. 3) [2023] NSWDC 417

Category:

Costs

Parties:

SafeWork NSW (Prosecutor)
BSA Limited (Defendant)

Representation:

Counsel:
J Agius SC with B Docking
A Moses SC with M Shume

Solicitors:
Department of Customer Service (Prosecutor)
Seyfarth Shaw (Defendant)

File Number(s):

2020/351444

Judgment

Introduction

1. This judgment concerns the costs of a prosecution brought by SafeWork NSW (SafeWork) against the defendant BSA Limited (BSA). The parties filed written submissions and agreed that the costs issue should be determined on the papers.

2. Proceedings were commenced in this court by a Summons filed on 9 December 2020. The matter came before the court many times for directions hearings and interlocutory hearings. On 7 April 2022 the matter was listed for hearing, on a plea of not guilty, for four weeks commencing on 13 February 2023.

3. On 6 December 2022 BSA entered a plea of guilty on a limited basis. BSA admitted one pleaded risk but disputed the second pleaded risk. BSA admitted two reasonably practicable measures which it should have taken, but disputed the balance of the pleaded reasonably practicable measures.

4. After a Disputed Facts Hearing which occupied 13 days, spread over a four-week period, I found BSA guilty on 31 March 2023: SafeWork NSW v BSA Ltd (No. 2) [2023] NSWDC 73 (the primary judgment).

Findings made in the Primary Judgment

5. The primary judgment found as follows:

1. The prosecutor had not established the risk pleaded in par 8(ii) of the Further Amended Summons filed on 1 March 2023 (BSA had admitted the existence of the risk pleaded in par 8(i) of the Further Amended Summons).

2. The allegations set out in par 8(i) and subpars 9(d), 9(e), 9(g)(i), 9(g)(ii), 9(g)(iii) and 9(g)(v) in the Further Amended Summons had been proved beyond reasonable doubt.

3. The prosecutor had not proved that the defendant committed an offence by failing to take the steps pleaded in subpars 9(a), 9(b), 9(c), 9(f), 9(g)(iv) and 9(h) of the Further Amended Summons.

6. Thus at the Disputed Facts Hearing:

1. The prosecutor established (by admission) one of the pleaded risks but did not establish a second pleaded risk.

2. The prosecutor proved that BSA had committed an offence by failing to take six of the pleaded steps.

3. Two of these particulars were admitted by the plea of…