District Court
New South Wales
Medium Neutral Citation: SafeWork NSW v Edstein Creative Pty Ltd (No. 3) [2023] NSWDC 335 Hearing dates: 21 August 2023 Date of orders: 29 August 2023 Decision date: 29 August 2023 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Dismiss the Notice of Motion filed on 21 July 2023.
(2) Order each party to pay his or its own costs of the Notice of Motion.
Catchwords: CRIMINAL PROCEDURE — suppression and non-publication orders — potential witness seeks order restricting publication of his name or information tending to reveal his identity — grounds — whether necessary to protect the safety of the applicant — no evidence that suffering “distress and embarrassment” is likely to prejudice safety — whether necessary to prevent prejudice to the proper administration of justice — application dismissed
Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW), ss 3, 6, 7, 8
Work Health and Safety Act 2011 (NSW), ss 19, 32
Cases Cited: AB (A Pseudonym) v CD (A Pseudonym) [2019] HCA 6
AB (A Pseudonym) v R (No 3) [2019] NSWCCA 46
Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125; (2012) 83 NSWLR 52
Category: Procedural rulings Parties: SafeWork NSW (Prosecutor)
Edstein Creative Pty Ltd (Defendant)
AB (A Pseudonym) (Applicant)Representation: Counsel:
Solicitors:
C Magee (Prosecutor)
L-C Hutchinson (Applicant)
Department of Customer Service (Prosecutor)
McCullough Robertson Lawyers (Applicant)
File Number(s): 2021/181676
Judgment
Introduction
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This judgment concerns a Notice of Motion filed on 21 July 2023 by a potential witness, seeking an order prohibiting the publication of his name and of any information tending to reveal his identity. The application is made pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) (the CSNP Act).
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The witness who is the applicant on the Notice of Motion will be referred to in this judgment as “AB”. I have delivered two previous judgments in the proceedings, which I later revised to refer to the witness as AB.
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By an Amended Summons filed on 20 June 2023 the prosecutor SafeWork NSW (SafeWork) has brought criminal proceedings against the defendant Edstein Creative Pty Limited (Edstein). The Amended Summons alleges that Edstein was in breach of its health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (the WHS Act).
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The Amended Summons alleges that Edstein failed to ensure, so far as is reasonably practicable, the health and safety of workers while the workers are at work in the business or undertaking of Edstein, and the failure to comply with that duty exposed a worker, in particular AB, to a risk of serious illness contrary to s 32 of the WHS Act. The Amended Summons alleges that AB was exposed to high levels of airborne Respirable Crystalline Silica (RCS) which led to AB developing silicosis or accelerated silicosis.
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- Case
- [2023] NSWDC 335
- Decision Date
CaseChat Overview and Summary
The court examined the grounds for the application, focusing on the necessity to protect the potential witness's safety and the risk of prejudice to the administration of justice. It found that while the potential witness experienced distress and embarrassment, there was no evidence that this would likely prejudice their safety. Furthermore, the court concluded that the potential witness's anonymity was not essential to prevent prejudice to the administration of justice. The court held that the distress and embarrassment experienced by the potential witness did not rise to the level of harm that would justify the imposition of suppression and non-publication orders.
Consequently, the court dismissed the application for suppression and non-publication orders. It ordered each party to bear its own costs associated with the Notice of Motion. This decision underscores the high threshold required for the court to impose such restrictive measures, emphasizing the need for substantial evidence of harm or prejudice.
Orders
Orders of the court
(1) Dismiss the Notice of Motion filed on 21 July 2023.
(2) Order each party to pay his or its own costs of the Notice of Motion.
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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