SafeWork NSW v JBS Australia Pty Ltd - [2023] NSWDC 116

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v JBS Australia Pty Ltd [2023] NSWDC 116
Hearing dates: 19 April 2023
Date of orders: 26 April 2023
Decision date: 26 April 2023
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1) Dismiss the prosecutor’s Notice of Motion filed on 30 November 2022.
(2) Order the prosecutor to pay the defendant’s costs of that Notice of Motion.

Catchwords:
CRIMINAL PROCEDURE – Summary proceedings – Preliminary disclosure – Prosecutor seeks an order requiring defendant to give notice of objections to admissibility of evidence and basis of objections in response to prosecutor’s notice – Whether “interests of justice” are served by order – Purpose of preliminary discovery is to reduce delay in proceedings – Error to take into account matters of general application rather than matters specific to a particular case

Legislation Cited:
Criminal Procedure Act 1986 (NSW), ss 247A, 247B, 247E, 247F, 247G, 247H, 247I, 247K
Work Health and Safety Act 2011 (NSW), ss 7, 19, 32, 155

Cases Cited:
Environment Protection Authority v Eastern Creek Operations Pty Ltd(No. 2) [2021] NSWLEC 39
Herron v The Attorney General for NSW (1987) 8 NSWLR 601
Pambula District Hospital v Herriman (1988) 14 NSWLR 387
Poletti Corporation Pty Ltd v SafeWork NSW [2020] NSWCCA 243
Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121

Texts Cited:
Agreement in Principle Speech to the Criminal Procedure Amendment (Summary Proceedings Case Management) Bill 2011 (NSW)
District Court Criminal Practice Note 16 - Work Health and Safety Prosecutions

Category: Procedural rulings
Parties: SafeWork NSW (Prosecutor)
JBS Australia Pty Ltd (Defendant)
Representation:
Counsel:
J Agius SC with N Read (Prosecutor)
A Moses SC with P Sharp (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
Loupe Legal Pty Ltd (Defendant)

File Number(s): 2022/40927

Judgment

Introduction

The prosecutor SafeWork NSW (SafeWork) filed a Summons in this court on 11 February 2022 alleging that the defendant JBS Australia Pty Ltd (JBS) had committed an offence under the Work Health and Safety Act 2011 (NSW) (the WHS Act).
The proceedings have come before this court from time to time for directions. On 29 August 2022 the parties appeared before Judge Scotting and the defendant entered a plea of not guilty.
SafeWork filed a Notice of Motion on 30 November 2022 seeking an order for preliminary disclosure under s 247I of the Criminal Procedure Act 1986 (NSW) (the CP Act).
On 16 December 2022 the parties appeared before Judge Scotting. The matter was set down for trial for three weeks before Judge Scotting, commencing on 31 July 2023. The first week will be conducted at a country courthouse to accommodate witnesses. On 16 December 2022 there was discussion about the prosecutor’s Motion for preliminary disclosure. Complaint was made by senior counsel for JBS that the defendant could not be expected to indicate its objections to prosecution documents in the absence of hearing an opening of the prosecution case.
Judge Scotting ordered SafeWork to provide a written outline of the opening submissions…

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 116
Decision Date: 26 April 2023

CaseChat Overview and Summary

SafeWork NSW brought proceedings against JBS Australia Pty Ltd in the Local Court of New South Wales, alleging breaches of occupational health and safety regulations. The dispute centred on the admissibility of certain evidence in the prosecution's case. SafeWork NSW sought an order compelling JBS to notify any objections to the admissibility of evidence and the basis for those objections, in response to a notice from the prosecutor. The court had to decide whether making such an order would serve the interests of justice and if it would help reduce delays in the proceedings.

The court analysed the purpose of preliminary discovery, which is to streamline the trial process by ensuring that all potential issues with evidence are identified early. The judge considered whether the order should account for general procedural principles or be tailored to the specifics of this case. The court concluded that it was an error to consider general principles rather than the particular circumstances of the case at hand. The judge found that the prosecutor's motion did not adequately demonstrate how the order would serve the interests of justice or expedite the proceedings.

The court dismissed the prosecutor's motion and ordered SafeWork NSW to pay JBS's costs associated with the motion. The decision emphasised the need for a case-by-case analysis when determining the appropriateness of such orders, ensuring that any procedural steps taken genuinely aid the administration of justice without causing unnecessary delays.

Orders

Orders of the court

(1) Dismiss the prosecutor’s Notice of Motion filed on 30 November 2022.

(2) Order the prosecutor to pay the defendant’s costs of that 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 JBS Australia Pty Ltd [2023] NSWDC 116
Hearing dates:	19 April 2023
Date of orders:	26 April 2023
Decision date:	26 April 2023
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Dismiss the prosecutor’s Notice of Motion filed on 30 November 2022. (2) Order the prosecutor to pay the defendant’s costs of that Notice of Motion.
Catchwords:	CRIMINAL PROCEDURE – Summary proceedings – Preliminary disclosure – Prosecutor seeks an order requiring defendant to give notice of objections to admissibility of evidence and basis of objections in response to prosecutor’s notice – Whether “interests of justice” are served by order – Purpose of preliminary discovery is to reduce delay in proceedings – Error to take into account matters of general application rather than matters specific to a particular case
Legislation Cited:	Criminal Procedure Act 1986 (NSW), ss 247A, 247B, 247E, 247F, 247G, 247H, 247I, 247K Work Health and Safety Act 2011 (NSW), ss 7, 19, 32, 155
Cases Cited:	Environment Protection Authority v Eastern Creek Operations Pty Ltd(No. 2) [2021] NSWLEC 39 Herron v The Attorney General for NSW (1987) 8 NSWLR 601 Pambula District Hospital v Herriman (1988) 14 NSWLR 387 Poletti Corporation Pty Ltd v SafeWork NSW [2020] NSWCCA 243 Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121
Texts Cited:	Agreement in Principle Speech to the Criminal Procedure Amendment (Summary Proceedings Case Management) Bill 2011 (NSW) District Court Criminal Practice Note 16 - Work Health and Safety Prosecutions
Category:	Procedural rulings
Parties:	SafeWork NSW (Prosecutor) JBS Australia Pty Ltd (Defendant)
Representation:	Counsel: J Agius SC with N Read (Prosecutor) A Moses SC with P Sharp (Defendant) Solicitors: Department of Customer Service (Prosecutor) Loupe Legal Pty Ltd (Defendant)
File Number(s):	2022/40927