SafeWork NSW v Edstein Creative Pty Ltd - [2022] NSWDC 117

District Court

New South Wales

Amendment notes

Medium Neutral Citation: SafeWork NSW v Edstein Creative Pty Ltd [2022] NSWDC 117
Hearing dates: 11 April 2022
Date of orders: 14 April 2022
Decision date: 14 April 2022
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Order that the Summons be stayed until such time as the prosecutor properly particularises the allegations going to:
(a)   When it is alleged that the offence was committed
(b)   Where it is alleged that the offence was committed
(c)   The identity of each worker said to have been exposed to the pleaded risk.
(2)   Order each party to pay its own costs of the defendant’s Notice of Motion.
(3)   Stand the proceedings over to the Work Health and Safety directions list at 9.30am on 2 May 2022.

Catchwords:
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury
CRIMINAL PROCEDURE – whether proceedings brought outside limitation period – whether particulars of offence are adequate
Legislation Cited:
Work Health and Safety Act 2011 (NSW) ss 8, 19, 32, 232

Cases Cited:
Director-General of the Department of Land and Water Conservation v Greentree & Anor [2003] NSWCCA 31
Sloggett v Adams (1953) 70 WN (NSW) 206

Category: Procedural rulings
Parties: SafeWork NSW (Prosecutor)
Edstein Creative Pty Ltd (Defendant)
Representation:
Counsel:
I Taylor SC and C Magee (Prosecutor)
B Hodgkinson SC and P Barry (Defendant)
Solicitors:
SafeWork NSW (Prosecutor)
Macpherson Kelley (Defendant)

File Number(s): 2021/00181676

Judgment

Introduction

The defendant in these proceedings filed a Motion on 8 February 2022 seeking orders:

Dismissing the Summons; or

Permanently staying the Summons; or

Staying the Summons until proper particulars are provided.

The application for orders (1) and (2) is founded upon s 232 of the Work Health and Safety Act 2011 (NSW) (the Act).
The application for order (3) requires proper particulars to be provided of:

When the offence was committed.

Where the offence was committed.

The identity of each worker said to have been exposed to the pleaded risk.

The defendant also seeks costs of the proceedings or of the Motion.

The Offence Alleged

The Summons was filed on 24 June 2021. It alleges that the defendant had a duty under s 19(1) of the Act to ensure so far as was reasonably practicable the health and safety of its workers and that it failed to comply with that duty. The Summons alleges that the failure to comply with the duty exposed a worker, AB (a pseudonym), to a risk of serious illness contrary to s 32 of the Act.
The Summons particularises the date of the offence as “1 January 2012 to 1 November 2018” and the place of the offence as “Newcastle and Hunter regions, New South Wales”. Further particulars are provided in Annexure ‘A’ to the Summons as follows:

The Newcastle and Hunter region was a ‘workplace’ within the meaning of s 8 of the Act.

The defendant engaged AB as an installer of manufactured stone…

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.

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Details

Case: [2022] NSWDC 117
Decision Date: 14 April 2022

CaseChat Overview and Summary

SafeWork NSW prosecuted Edstein Creative Pty Ltd, a company in the construction industry, on charges related to work health and safety. The case was heard in the Local Court of New South Wales, where the prosecution alleged that the company had failed to comply with its duties under the Work Health and Safety Act 2011. The specific offence was the failure to ensure that workers were not exposed to a risk of death or serious injury. The dispute centred on whether the proceedings were brought within the limitation period and whether the particulars of the offence were adequate.

The primary legal issues for the court to decide were whether the proceedings were initiated outside the limitation period and whether the particulars of the offence were sufficient. The court needed to determine if the prosecution had provided enough detail regarding when, where, and to whom the risk was alleged to have been exposed. Additionally, the court had to consider whether these particulars met the legal standards required for a valid prosecution.

The court found that the particulars of the offence were not sufficiently detailed, particularly in relation to the time, place, and identity of the workers involved. As a result, the court stayed the summons and ordered the prosecution to provide more specific information before proceeding. The court also ordered that each party bear its own costs for the defendant’s notice of motion and set the matter for a further hearing on the Work Health and Safety directions list. This decision underscores the importance of detailed particulars in criminal proceedings to ensure the accused has a fair opportunity to respond to the charges.

Orders

Orders of the court

(1) Order that the Summons be stayed until such time as the prosecutor properly particularises the allegations going to:

(a) When it is alleged that the offence was committed

(b) Where it is alleged that the offence was committed

(2) Order each party to pay its own costs of the defendant’s Notice of Motion.

(3) Stand the proceedings over to the Work Health and Safety directions list at 9.30am on 2 May 2022.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	SafeWork NSW v Edstein Creative Pty Ltd [2022] NSWDC 117
Hearing dates:	11 April 2022
Date of orders:	14 April 2022
Decision date:	14 April 2022
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Order that the Summons be stayed until such time as the prosecutor properly particularises the allegations going to: (a) When it is alleged that the offence was committed (b) Where it is alleged that the offence was committed (c) The identity of each worker said to have been exposed to the pleaded risk. (2) Order each party to pay its own costs of the defendant’s Notice of Motion. (3) Stand the proceedings over to the Work Health and Safety directions list at 9.30am on 2 May 2022.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury CRIMINAL PROCEDURE – whether proceedings brought outside limitation period – whether particulars of offence are adequate
Legislation Cited:	Work Health and Safety Act 2011 (NSW) ss 8, 19, 32, 232
Cases Cited:	Director-General of the Department of Land and Water Conservation v Greentree & Anor [2003] NSWCCA 31 Sloggett v Adams (1953) 70 WN (NSW) 206
Category:	Procedural rulings
Parties:	SafeWork NSW (Prosecutor) Edstein Creative Pty Ltd (Defendant)
Representation:	Counsel: I Taylor SC and C Magee (Prosecutor) B Hodgkinson SC and P Barry (Defendant) Solicitors: SafeWork NSW (Prosecutor) Macpherson Kelley (Defendant)
File Number(s):	2021/00181676