SafeWork NSW v Buddco Pty Ltd - [2020] NSWDC 318

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 costs
Legislation 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 242
Category: Principal judgment
Parties: SafeWork New South Wales (Prosecutor)
Buddco Pty Ltd (Defendant)
Representation:
Counsel:
Mr C Magee appeared for the Prosecutor
Mr M Scott appeared for the Defendant
Solicitors:
SafeWork NSW Department of Finance (Prosecutor)
Lander & Rogers (Defendant)

File Number(s): 2019/208718
Publication restriction: None

Judgment

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.
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’.

On 9 December 2019, the defendant entered a plea of not guilty. A trial date has not been set.
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).
The amendments sought are to include two sub-paragraphs in Clause 13 of Annexure A to the Summons, as follows:

‘(1) Ensure…

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 Buddco Pty Ltd

Details

AGLC: SafeWork NSW v Buddco Pty Ltd [2020] NSWDC 318
Case: [2020] NSWDC 318
Decision Date: 19 June 2020

CaseChat Overview and Summary

SafeWork NSW prosecuted Buddco Pty Ltd in relation to breaches of work health and safety laws that resulted in the death of an employee. The case was heard by the Local Court of New South Wales. The primary legal issue was whether the prosecutor was entitled to amend the summons to reflect new evidence and allegations that arose during the course of the investigation. The secondary issue was the allocation of costs for the motion to amend the summons.

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

Full text does not contain this section.

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 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 costs
Legislation 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 242
Category:	Principal judgment
Parties:	SafeWork New South Wales (Prosecutor) Buddco Pty Ltd (Defendant)
Representation:	Counsel: Mr C Magee appeared for the Prosecutor Mr M Scott appeared for the Defendant Solicitors: SafeWork NSW Department of Finance (Prosecutor) Lander & Rogers (Defendant)
File Number(s):	2019/208718
Publication restriction:	None