District Court
New South Wales
Medium Neutral Citation: SafeWork NSW v Buddco Pty Ltd [2020] NSWDC 318 Hearing dates: 10 June 2020 Date of orders: 19 June 2020 Decision date: 19 June 2020 Jurisdiction: Criminal Before: Strathdee, DCJ Decision: (1) I grant leave to the prosecutor to amend the Summons issued on 5 July 2019 in accordance with the terms of the proposed Amended Summons which is the annexure marked “B” to the Affidavit of Rhys Wilkins affirmed on 16 March 2020 and marked as Exhibit A on this application.
(2) Costs of the motion be costs in the cause.Catchwords: CRIMINAL LAW- prosecution- work health and safety- duty of persons undertaking a business – risk of death or serious injury
COSTS – prosecution costsLegislation Cited: Criminal Procedure Act 1986 (NSW)
Occupational Health and Safety Act 2000 (NSW)Cases Cited: Borodin v R; Borodin v R; ED v R; Bogomiagkov v R [2006] NSWCCA 83
Clarke v R (1993) 71 A Crim R 58
G.P.I. (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157
Inspector Nikolovski v Peter Bakhos and City Civil Pty Ltd [2011] NSWIRComm 20
Rajendran v R [2010] NSWCCA 322; (2010) 206 A Crim R 806
Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW (2007) 165 IR 7
WorkCover Authority of New South Wales (Inspector Woodington) v Australand Holdings Limited and Sassall Glass and Joinery Pty Limited [2006] NSWIRComm 242Category: Principal judgment Parties: SafeWork New South Wales (Prosecutor)
Buddco Pty Ltd (Defendant)Representation: Counsel:
Solicitors:
Mr C Magee appeared for the Prosecutor
Mr M Scott appeared for the Defendant
SafeWork NSW Department of Finance (Prosecutor)
Lander & Rogers (Defendant)
File Number(s): 2019/208718 Publication restriction: None
Judgment
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By Notice of Motion filed 16 March 2020 the Prosecutor seeks an order that leave be granted to amend the particulars of the Summons dated 4 July 2019.
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In a Summons filed on 4 July 2019, the offence pleaded was as follows;
‘On 7 December 2017 at 323 Chisholm Road, Auburn, in New South Wales, Buddco Pty Ltd, being a person conducting a business or undertaking who had a duty under section 19(1) of the Work Health and Safety Act 2011 (Act) to ensure, so far as reasonably practicable, the health and safety of workers while the workers are at work in the business or undertaking, did fail to comply with that duty and the failure to comply with that duty exposed workers, in particular Craig Tanner and Yatin Mehta, to a risk of death or serious injury contrary to section 32 of the Act’.
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On 9 December 2019, the defendant entered a plea of not guilty. A trial date has not been set.
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The amendments sought are set out in a Proposed Amended Summons which is an annexure to the Affidavit of Rhys Wilkins affirmed 16 March 2020 (Exhibit A).
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The amendments sought are to include two sub-paragraphs in Clause 13 of Annexure A to the Summons, as follows:
‘(1) Ensure…
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- AGLC
- SafeWork NSW v Buddco Pty Ltd [2020] NSWDC 318
- Case
- [2020] NSWDC 318
- Decision Date
CaseChat Overview and Summary
The court found that the prosecutor was entitled to amend the summons to include additional charges that more accurately reflected the evidence available. The court reasoned that such amendments were permissible as they did not prejudice the respondent's right to a fair trial, and the amendments were made in the interests of justice. Regarding costs, the court determined that the costs of the motion to amend the summons should be borne by the prosecutor, as the motion was necessary to ensure that the case proceeded fairly and justly. The court noted that the prosecutor's need to amend the summons was due to the evolving nature of the evidence and not due to any lack of diligence or preparation on their part.
The court granted leave for the prosecutor to amend the summons and ordered that the costs of the motion be paid by the prosecutor. This decision ensures that the case can proceed with the most accurate and complete set of charges, reflecting the evidence available, while also maintaining the principle that costs should be borne by the party that benefits from the procedural step.
Orders
Orders of the court
(1) I grant leave to the prosecutor to amend the Summons issued on 5 July 2019 in accordance with the terms of the proposed Amended Summons which is the annexure marked “B” to the Affidavit of Rhys Wilkins affirmed on 16 March 2020 and marked as Exhibit A on this application.
(2) Costs of the motion be costs in the cause.
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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