SafeWork NSW v Edstein Creative Pty Ltd (No. 3) - [2023] NSWDC 335

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
R v AB (No 1) [2018] NSWCCA 113
SafeWork NSW v Snap Programs Ltd; SafeWork NSW v Department of Communities and Justice [2020] NSWDC 455

Category: Procedural rulings
Parties: SafeWork NSW (Prosecutor)
Edstein Creative Pty Ltd (Defendant)
AB (A Pseudonym) (Applicant)
Representation:
Counsel:
C Magee (Prosecutor)
L-C Hutchinson (Applicant)
Solicitors:
Department of Customer Service (Prosecutor)
McCullough Robertson Lawyers (Applicant)

File Number(s): 2021/181676

Judgment

Introduction

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).
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.
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).
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.

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 335
Decision Date: 29 August 2023

CaseChat Overview and Summary

SafeWork NSW sought to impose suppression and non-publication orders on Edstein Creative Pty Ltd to prevent the publication of the name or information tending to reveal the identity of a potential witness. The case was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the potential witness's safety necessitated such restrictions and whether preventing prejudice to the administration of justice required the suppression of the witness's identity.

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

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. 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 R v AB (No 1) [2018] NSWCCA 113 SafeWork NSW v Snap Programs Ltd; SafeWork NSW v Department of Communities and Justice [2020] NSWDC 455
Category:	Procedural rulings
Parties:	SafeWork NSW (Prosecutor) Edstein Creative Pty Ltd (Defendant) AB (A Pseudonym) (Applicant)
Representation:	Counsel: C Magee (Prosecutor) L-C Hutchinson (Applicant) Solicitors: Department of Customer Service (Prosecutor) McCullough Robertson Lawyers (Applicant)
File Number(s):	2021/181676