District Court
New South Wales
- Amendment notes
Medium Neutral Citation: SafeWork NSW v Pendle Ham & Bacon Pty Ltd (No 2) [2025] NSWDC 399 Hearing dates: 19 September 2025 Date of orders: 03 October 2025 Decision date: 03 October 2025 Jurisdiction: Criminal Before: Scotting DCJ Decision: (1) The questions 1-7 proposed by the prosecutor are not questions of law for the purposes of s 5AE Criminal Appeal Act 1912 and I do not have the power to state them to the Court of Criminal Appeal for determination.
Catchwords: CRIMINAL PROCEDURE – whether questions can be submitted to the Court of Criminal Appeal – when questions submitted after delivery of reasons that the prosecutor had failed to establish elements of the relevant offences – whether surrogate right of appeal – whether questions proposed by the prosecutor to be submitted were questions of law within the meaning of s 5AE Criminal Appeal Act 1912
Legislation Cited: Criminal Appeal Act 1912
Evidence Act 1995
Partnership Act 1892
Cases Cited: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338
Director General Department of Trade and Investment Regional Infrastructure and Services v Glennies Creek Coal Management Pty Ltd (2013) 239 IR 343
Environmental Protection Authority of NSW v Goulburn Wool Scour Pty Ltd (2004) 137 LGERA 289
Environmental Protection Authority v Grafil Pty Ltd [2019] NSWCCA 174
Ex parte McGavin; Re Berne (1946) 46 SR (NSW) 58
Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288
Jago v District Court of New South Wales (1989) 168 CLR 23
Kirk v Industrial Court of New South Wales (NSW) (2010) 239 CLR 531
Lam v Beesley (1992) 7 WAR 88 at 95
Mifsud v Campbell (1991) 21 NSWLR 725
Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 609
Moore v The King [2024] HCA 30
Orr v Cobar Management Pty Ltd [2020] NSWCCA 220
Orr v Hunter QuarriesPty Ltd [2022] NSWCCA 39
SafeWork NSW v BOC Ltd [2020] NSWCA 306
SafeWork NSW v Pendle Ham & Bacon Curers Pty Ltd [2024] NSWDC 395
SafeWork NSW v Pendle Ham & Bacon Pty Ltd [2025] NSWDC 63
SafeWork NSW v Scharfe [2021] NSWDC 260
Saunders Civilbuild Pty Ltd v SafeWork NSW [2023] NSWCCA 261
Todorovic v Moussa (2001) 53 NSWLR 463
Western Sydney Local Health District v SafeWork NSW [2024] NSWCCA 153
Category: Principal judgment Parties: SafeWork NSW (Prosecutor)
Pendle Ham & Bacon Pty Ltd (Defendant)
Pendle Ham & Bacon Curers Pty Ltd (Defendant)
PHBC LH Pty Ltd (Defendant)
Michael Zammit (Defendant)Representation: Counsel:
Solicitors:
J Stratton SC with B Docking
M Shume
Legal, Department of Customer Service (Prosecutor)
Hall & Wilcox (Defendants)
File Number(s): Pendle Ham & Bacon Pty Ltd - 2023/160834 and 2023/160857
Pendle Ham & Bacon Curers Pty Ltd - 2023/160812 and 2023/160871
PHBC LH Pty Ltd - 2023/160882
Michael Zammit - 2023/160822Publication restriction: None
Judgment
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- Case
- [2025] NSWDC 399
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining whether questions submitted to it by the prosecutor, after the reasons for judgment had been delivered, could be submitted to the Court of Criminal Appeal. The questions in question related to the prosecutor's contention that certain elements of the relevant offences had not been established. Further, the court had to decide whether the prosecutor had a surrogate right of appeal, and if the proposed questions were indeed questions of law as defined under section 5AE of the Criminal Appeal Act 1912.
In delivering its judgment, the court held that the questions proposed by the prosecutor did not qualify as questions of law under section 5AE of the Criminal Appeal Act 1912. Consequently, the court did not have the authority to submit these questions to the Court of Criminal Appeal for determination. The court emphasised the importance of adhering to the statutory framework governing the submission of questions to the appellate court and noted that the prosecutor's proposed questions did not meet the criteria for being considered questions of law. As a result, the court declined to submit the questions to the Court of Criminal Appeal.
The court's final order was that the questions 1-7 proposed by the prosecutor were not questions of law for the purposes of section 5AE of the Criminal Appeal Act 1912, and that the court did not have the power to state them to the Court of Criminal Appeal for determination.
Orders
Orders of the court
(1) The questions 1-7 proposed by the prosecutor are not questions of law for the purposes of s 5AE Criminal Appeal Act 1912 and I do not have the power to state them to the Court of Criminal Appeal for determination.
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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