SafeWork NSW v Edstein Creative Pty Ltd (No. 2) - [2023] NSWDC 180

District Court

New South Wales

Amendment notes

Medium Neutral Citation: SafeWork NSW v Edstein Creative Pty Ltd (No. 2) [2023] NSWDC 180
Hearing dates: 23 May 2023
Date of orders: 2 June 2023
Decision date: 02 June 2023
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1) Vacate Order 1 made on 14 April 2022, to the intent that the stay is dissolved.
(2) Grant leave to the prosecutor to amend the Summons by filing and serving a document in the form of Tab C to Exhibit PX 1 subject to par 14 of the Amended Summons reading as follows:
“As a result of the defendant’s failures a worker, in particular [AB], was exposed to a risk of acquiring serious occupational illnesses.”
(3) Direct the prosecutor to file, with the Amended Summons, an Amended Statement of Facts.
(4 Order that the costs of the Notice of Motion be costs in the cause.
(5) Stand over to the Work Health and Safety list at 9.30am on 26 June 2023.

Catchwords:
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury
CRIMINAL PROCEDURE – application to dissolve stay of proceedings – whether particulars of offence are sufficient to enable defendant to know the case it has to meet – where offence alleged is one of a continuing nature over specified period of time – application to amend Summons – where proposed amendments bring Summons into line with new particulars
Legislation Cited:
Work Health and Safety Act 2011 (NSW), s 19

Cases Cited:
Allianz Australia Insurance Ltd v Newcastle Formwork Constructions Pty Ltd [2007] NSWCA 144
SafeWork NSW v Edstein Creative Pty Ltd [2022] NSWDC 117
SafeWork NSW v Solveco Pty Ltd [2021] NSWDC 298

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

File Number(s): 2021/00181676

Judgment

Introduction

On 14 April 2022 I made an order in these proceedings that the Summons be stayed until such time as the prosecutor properly particularises the allegations going to:

When it is alleged that the offence was committed.

Where it is alleged that the offence was committed.

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

My reasons for making that order appear in the judgment given on 14 April 2022: SafeWork NSW v Edstein Creative Pty Ltd [2022] NSWDC 117 (the first judgment).
The Summons in these proceedings was filed on 24 June 2021. The defendant Edstein Creative Pty Ltd (Edstein) conducted a business between 2012 and 2018 involving the manufacture and installation of engineered stone benchtops. That work involved cutting, grinding, drilling, and polishing the benchtops. The Summons alleged that AB (a pseudonym) worked between 1 January 2012 and 1 November 2018 installing manufactured stone products, which involved cutting, grinding, drilling, or polishing. The Summons further alleged that 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.

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Details

Case: [2023] NSWDC 180
Decision Date: 02 June 2023

CaseChat Overview and Summary

SafeWork NSW initiated criminal proceedings against Edstein Creative Pty Ltd for alleged breaches of work health and safety laws, specifically concerning the risk of death or serious injury to employees. The proceedings were heard in the Local Court of New South Wales. The defendant applied to dissolve a stay of proceedings and to amend the Summons, arguing that the particulars of the offence were insufficient to enable it to know the case it has to meet, particularly where the offence was alleged to be of a continuing nature over a specified period. The defendant also sought to amend the Summons to align with new particulars.

The court was required to decide whether the particulars of the offence were sufficient to inform the defendant of the case it had to meet, and if the proposed amendments to the Summons were appropriate. The court considered the nature of the offence, which was of a continuing nature, and the necessity for clear and specific particulars to enable the defendant to adequately prepare its defence. The court also examined the proposed amendments to the Summons and the accompanying Statement of Facts, assessing whether they provided a more accurate description of the alleged offences.

The court found that the original particulars of the offence were insufficient and granted the defendant's application to dissolve the stay of proceedings. The court allowed the prosecutor to amend the Summons to include the proposed particulars, which more accurately described the risk of serious occupational illnesses faced by a specific worker. The court directed the prosecutor to file an Amended Statement of Facts and ordered the costs of the Notice of Motion to be costs in the cause. The matter was stood over to the Work Health and Safety list for further hearing.

Orders

Orders of the court

(1) Vacate Order 1 made on 14 April 2022, to the intent that the stay is dissolved.

(2) Grant leave to the prosecutor to amend the Summons by filing and serving a document in the form of Tab C to Exhibit PX 1 subject to par 14 of the Amended Summons reading as follows:

“As a result of the defendant’s failures a worker, in particular [AB], was exposed to a risk of acquiring serious occupational illnesses.”

(3) Direct the prosecutor to file, with the Amended Summons, an Amended Statement of Facts.

(4 Order that the costs of the Notice of Motion be costs in the cause.

(5) Stand over to the Work Health and Safety list at 9.30am on 26 June 2023.

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 (No. 2) [2023] NSWDC 180
Hearing dates:	23 May 2023
Date of orders:	2 June 2023
Decision date:	02 June 2023
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Vacate Order 1 made on 14 April 2022, to the intent that the stay is dissolved. (2) Grant leave to the prosecutor to amend the Summons by filing and serving a document in the form of Tab C to Exhibit PX 1 subject to par 14 of the Amended Summons reading as follows: “As a result of the defendant’s failures a worker, in particular [AB], was exposed to a risk of acquiring serious occupational illnesses.” (3) Direct the prosecutor to file, with the Amended Summons, an Amended Statement of Facts. (4 Order that the costs of the Notice of Motion be costs in the cause. (5) Stand over to the Work Health and Safety list at 9.30am on 26 June 2023.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury CRIMINAL PROCEDURE – application to dissolve stay of proceedings – whether particulars of offence are sufficient to enable defendant to know the case it has to meet – where offence alleged is one of a continuing nature over specified period of time – application to amend Summons – where proposed amendments bring Summons into line with new particulars
Legislation Cited:	Work Health and Safety Act 2011 (NSW), s 19
Cases Cited:	Allianz Australia Insurance Ltd v Newcastle Formwork Constructions Pty Ltd [2007] NSWCA 144 SafeWork NSW v Edstein Creative Pty Ltd [2022] NSWDC 117 SafeWork NSW v Solveco Pty Ltd [2021] NSWDC 298
Category:	Procedural rulings
Parties:	SafeWork NSW (Prosecutor) Edstein Creative Pty Ltd (Defendant)
Representation:	Counsel: I Taylor SC with C Magee (Prosecutor) B Hodgkinson SC with P Barry (Defendant) Solicitors: Department of Customer Services (Prosecutor) Macpherson Kelley (Defendant)
File Number(s):	2021/00181676