SafeWork NSW v Western Sydney Local Health District

[2024] NSWDC 174

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Western Sydney Local Health District [2024] NSWDC 174

Hearing dates:

27 February 2024; 11 March 2024; 18 March 2024; 9 April 2024; 26 April 2024

Date of orders:

14 May 2024

Decision date:

14 May 2024

Jurisdiction:

Criminal

Before:

Strathdee DCJ

Decision:

(1)   I make an order in accordance with prayer 1 of the Notice of Motion filed 9 April 2024.

(2)   I vacate the hearing dates of 20-31 May 2024 inclusive.

(3)   I reserve the question of costs of the Motion.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury

Legislation Cited:

Criminal Appeal Act 1912 (NSW)

District Court Act 1973 (NSW)

District Court Rules 1973 (NSW)

Occupational Health and Safety Act 2002 (NSW)

Work Health and Safety Act 2011 (NSW)

Work Health and Safety Regulation 2017 (NSW)

Cases Cited:

Bowling v General Motors-Holden Pty Ltd (1975) 8 ALR 197

Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37

Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240

Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd (2004) 137 LEGRA 280

Inspector Orr v Perilya Broken Hill Limited [2018] NSWDC 28

Jago v District Court of New South Wales (1989) 168 CLR 23

Orr v Cobar Management Pty Ltd [2020] NSWCCA 220

Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39

R v BB (No 5) [2019] NSWSC 1393

R v Lykouras (2005) NSWCCA 8

R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 7) [2019] NSWSC 1916

R v Thomson; R v Houlton (2000) 14 NSWLR 374

R v Winchester (1992) 58 A Crim R 345

SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Limited (No 2) [2020] NSWDC 668

SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Limited (No 2) [2020] NSWDC 668

SafeWork NSW v NSW Western Sydney Local Health District [2023] NSWDC 279

SafeWork NSW v Southern Meats Pty Ltd [2023] NSWDC 204

Serratore (1999) NSWCCA 377; (1999) 48 NSWLR 101

Category:

Procedural rulings

Parties:

SafeWork NSW (Prosecutor)
Western Sydney Local Health District (Defendant)

Representation:

Counsel:
Mr B Docking and Mr D Nagle (for the Prosecutor)
Mr B Hodgkinson AM SC and Ms E Aitken (for the Defendant)

Solicitors:
Department of Customer Service (for the Prosecutor)
Ashurst Australia (for the Defendant)

File Number(s):

2021/195320

Judgment

Note

1. The documents in these proceedings name the nurse who was exposed to the risk. I will not use her name, but will describe her as Nurse E to protect her identity.

Introduction

2. By Notice of Motion (‘Motion’) filed by Western Sydney Local Health District (‘the defendant’) on 9 April 2024, the defendant seeks to move the Court to submit a question of law arising from the substantive proceedings to the New South Wales Court of Criminal Appeal (‘NSWCCA’) pursuant to section 5E of the Criminal Appeal Act 1912 (NSW) (‘CA Act’).

3. The Motion also seeks, as a consequential order, that the proceedings be stayed pending the determination of any question referred to the NSWCCA.

4. The question the defendant moves the Court to submit to the NSWCCA is:

‘Does the operation of section 17 of the Work Health and Safety Act 2011 (NSW) make it impermissible for the Prosecution to pursue particulars of a charge alleging a beach of the duty imposed by section 19 of that Act, which would not eliminate the pleaded risk, in circumstances where the Defendant has pleaded guilty to the charge based on an acceptance of a particular alleged by the Prosecution which would have, if implemented, eliminated the pleaded risk.’ (‘Question’).

5. I accept that in the event that the Motion fails, this Court will be required to determine the Question as a preliminary matter, prior to the determination of the substantive proceedings.

6. The proceedings were commenced via summonses filed in the District Court of NSW on 7 July 2021. A further Amended Summons was filed by the prosecutor on 19 May 2023 (‘Amended Summons’). The summonses (including as amended) allege a breach of the defendant’s primary duty pursuant to section 19 of the Work Health and Safety Act 2011 (NSW) (‘WHS Act’), in contravention of section 32 of the WHS Act (and in the alternative, in contravention of section 33 of the WHS Act).

7. The Question arises because, on 9 April 2024, the defendant entered a guilty plea to the WHS Act sections 19 and 32 charge in respect of paragraph 11(b) of Annexure A to the Amended Summons, which alleges a measure that would have eliminated the pleaded risk. The defendant has pleaded guilty to:

1. all the elements of the offence in relation to paragraph 11(b);

2. the risk of a worker, Nurse E, being exposed to a risk of serious physical injury or illness, serious psychiatric injury or illness, serious psychological injury or illness and/or impinging of psychological health and/or long-term health sequalae; and

3. save for the other measures alleged in paragraph 11, the remainder of the Amended Summons as pleaded.

8. The prosecutor has confirmed that the charge is confined to the exposure of one nurse, Nurse E, to the pleaded risk (see prosecutor’s response to question 1.1 in letter dated 16 September 2022 at pages 11-18 of Annexure B) and on a period of three days being 8-10 July 2019 (T 8.2-3 on 9 April 2024).

9. The defendant contends that the entry of its guilty plea on this basis was foreshadowed to the prosecutor in correspondence dated 25 March 2024.

10. The prosecutor has indicated to the Court that, despite the defendant’s guilty plea, it intends to proceed with the prosecution in respect of the measures alleged in paragraphs 11(c)(i)-(iii), (e), (g) and (h) of Annexure A to the Summons (T 5.10-15 on 9 April 2024).

11. The first paragraph of the prosecutor’s submissions states as follows:

1. ‘The prosecutor strongly opposes the orders sought in the defendant’s Notice of Motion filed in Court on 9 April 2024 and the affidavit of Scarlet Reid made the same day. There is no substance in or authority supporting the Defendant’s submissions filed 18 April 2024 (DS) at [3] and [29], “this Court will be required to determine the Question as a preliminary matter, prior to the determination of the substantive proceedings.” The case should proceed as a disputed facts sentencing hearing commencing on 20 May 2024, without further delay since the indictment was filed on 7 July 2021, keeping in mind the right of the community to expect persons charged with criminal offences are brought to trial and it take place within a reasonable time after the person has been charged (…Mason CJ in Jago v District Court of New South Wales (1989) 168 CLR 23; [1989] HCA 46 at 33-34 concerned the test of fairness to be applied in the context of a permanent stay, his Honour’s observations are also apposite in the context of an application for a temporary stay” (R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 7) [2019] NSWSC 1916 at [44]), and the ongoing impact on the Registered Nurse victim. DS at [29] raising “time and cost” does not sit well with a late and limited plea on 9 April 2024 to the Further Amended Summons (FAS) filed on 19 May 2023. This plea could have been entered in 2021. It has resulted from a recognition of the inevitable (R v Winchester (1992) 58 A Crim R 345 at 350 per Hunt CJ at CL, and cited in R v Thomson; R v Houlton (2000) 14 NSWLR 374; [2000] NSWCCA 309 per Spigelman CJ at [137]).’

12. Further, the prosecutor’s written submissions contain a summary as follows:

1. ‘There is not a difficult or unsettled question of law or a question of law as to which there are conflicting authorities or no clear authority (Orr v Cobar Management Pty Limited [2020] NSWCCA 220 (‘Cobar Management’) at [108]). In summary:

1. The defendant’s purported question is not a question of law for the purposes of s 5AE of the Criminal Appeal Act 1912 (NSW). The District Court of NSW should answer “No” to this question “1 Did I have the power to state the following questions of law pursuant to section 5AE of the Criminal Appeal Act 1912?” (Cobar Management at [125] and see the answer “No” to question 1 in that case).

2. As per Cobar Management at [126], the defendant’s purported question is not a question of law. It is inappropriate to ask the NSW Court of Criminal Appeal to answer the question as:

1. It is not a pure question of law (Cobar Management at [48], [109] and Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 (Hunter Quarries) at [12]).

2. Neither of these two options apply to the present case, “some questions of law can be decided without any reference to the facts, or may proceed by reference to assumed facts.” It will draw the NSW Court of Criminal Appeal into questions of fact and an analysis of the facts to establish whether there is an error of law disclosed where this cannot be known without scrutiny of the facts (Cobar Management at [48], [109] and Hunter Quarries at [12]).

3. It concerns a question of mixed fact and law; it is simply a question which “seems to describe a hybrid, the progeny of a dispute as to facts and as to the effect of the facts when they have been determined one way or the other”. It is not a question that can be stated and considered separately from the facts with which it is connected (Cobar Management at [59], [60], [109] and Hunter Quarries at [14], [16], [17]).

3. Cumulative or alternative allegations are accepted criminal law practice and procedure, and the cumulation of contraventions is otherwise authorised by s 233(1). The use of “failed to take one or more of the following measures”, as well as “and/or”, reflect that the prosecutor has consistently advanced a case that the defendant failed to take a combination of measures to risk manage aspects of the risk in par 10 of the FAS.

4. There is a settled meaning and application of the overall scheme of the Act and Regulations including s 19 needs to be read with ss 17 and 18 or they “form part of the necessary considerations” and the primary duty in s 19 extends to eliminate or minimise risk. Section 17 does not prevent the operation of s 233 (1) “2 or more contraventions of a health and safety duty provision by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences.”

5. It is settled that the 9 April 2024 plea of guilty carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more.

6. The prosecutor’s case on sentence is that the defendant’s plea of guilty to par 11(b) is an admission to a single administrative control that is a minimisation measure and not an elimination measure, and therefore, there it is an unresolved factual dispute or contest about the defendant’s purported question of law.

7. Principles governing the functions of prosecutors and judges involved in sentencing proceedings are settled; it is the function of prosecutors, not of judges, to decide the choice of the offence with which an accused is to be charged or the acceptance of a plea of guilty to a particular charge, including, a combination of measures or “2 or more contraventions” are required to satisfy the culpability and criminality in the indictment.

8. The defendant attempts to artificially limit the sentencing proceedings and impermissibly inhibit the sentencing Court from applying the statutory and common law purposes of sentencing and assessing the objective seriousness of the nature of the offending.

9. Any dispute beyond facts necessarily contained in the limited plea of guilty must be resolved by the application of ordinary legal principles that apply to a disputed facts sentencing hearing.

2. On the face of the purported question, [2](b)(i) to (iii) above apply: the prosecutor’s pursued additional “particulars of a charge” in par 11(c)(i), (ii), (iii), (e), (g), (h)(i), (ii) and (iii) are matters for evidence (see 3 Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; (2010) 78 NSWLR 499 at [49] and [50] was cited with approval by John Holland at [139], including, “In the present case, the charge made clear that that which had not been supplied was proper and sufficient food. It was further alleged that that omission contributed to the poor body condition of the animal which, at least by necessary inference, constituted an allegation that whatever had been provided was not both “proper and sufficient” and “It followed that the essential elements of the offence were addressed in the charge. The nature of the feed required by cattle, and its availability in the area at the relevant time, would have been matters for evidence.”) requiring scrutiny of the facts; these particulars could and should “eliminate the pleaded risk” when considered in combination and, therefore, concern a question of mixed law and fact or a hybrid; it is a matter of fact that for the admitted particular in par 11(b) to be “implemented” it required supervision and reliance on human behaviour, not an assumption that it would just happen; and the admitted particular in par 11(b), as a matter of fact, did not eliminate pleaded aspects or specifications of the risk in par 10(a) - (f), and it is inferred it was a minimisation measure relevant to one aspect of the risk pleaded or specified in par 10(a).

3. The 9 April 2024 transcript records: “... Now, in dealing with that, the Court has to assume for the present purposes that it will be implemented as intended” (T13.21). Thus, the oral submissions and DS confirm there is no pure question of law as the assumption is disputed and contested requiring scrutiny of the facts.

4. The purported question does not even refer to or reflect s 32, despite the Category 2 offence or charge is an offence under s 32 involving a breach of s 19(1).’

13. I note that the defendant relies on the correspondence exchanged between the parties in the form of requests for, and responses to requests for, further and better particulars which are included at Annexure B to its submissions.

POWER OF THE COURT

a)   To submit a question to the NSWCCA

14. Section 5AE of the CA Act provides:

‘(1)   At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction, the District Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination.

1. The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit.’

   15. In Orr v Cobar Management Pty Ltd [2020] NSWCCA 220 (‘Cobar Management’) at [103] (Bathurst CJ and Bell P) citing Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd (2004) 137 LEGRA 280 at 299; [2004] NSWCCA 439 at [36] (Simpson J, Bell and Buddin JJ agreeing) and cited with approval in Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 (‘Hunter Quarries’) at [10] (Beech-Jones CJ at CL, Walton J and Price J agreeing) the section was described as follows:

‘…designed to facilitate the giving of advice by this Court to a first instance judge in order to enable the proper resolution of the issues in the proceedings. It arises where proceedings are still on foot and enables the proper and just determination of those proceedings, according to law, and in the correct application of the law…’

16. Thus, pursuant to section 5AE, I can submit a question of law to the NSWCCA at any time prior to the completion of proceedings (see Hunter Quarries at [11] (Beech-Jones CJ at CL, Walton J and Price J agreeing).

b)   Power to stay proceedings

17. Section 156 of the District Court Act 1973 (NSW) provides:

‘(1)   At any stage of any proceedings, the Court may, on terms, order that the proceedings be stayed.

1. Nothing in subsection (1) limits any power conferred on the Court or a Judge by any other provision of this Act or rule of law to stay proceedings.’

   18. Part 53 rule 10 of the District Court Rules 1973 (NSW) confers a power on the Court to stay an indictment (which includes a summons) where a pre-trial application is made.

   19. I accept that this Court also has an implied or inherent power to control its own processes (see Jago v District Court of New South Wales (1989) 168 CLR 23 (‘Jago’) at 25 (Mason CJ), 49 (Brennan J), and 74 (Gaudron J). See R v BB (No 5) [2019] NSWSC 1393, at [9] and the authority there cited, confirming the District Court has an implied power to control its own processes.

Section 17

20. Section 17 of the WHS Act applies to 'A duty imposed on a person to ensure health and safety'. Section 19 of the WHS Act is a duty which requires a person to ensure health and safety in the context of what is reasonably practicable.

21. Section 17 provides that:

‘A duty imposed on a person to ensure health and safety requires the person-

(a)   to eliminate risks to health and safety, so far as is reasonably practicable, and

(b)   if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.’

22. The primary obligation on a person who has a duty to ensure health and safety is to eliminate risks to health and safety; section 17 of the WHS Act does not create alternative obligations (see SafeWork NSW v Southern Meats Pty Ltd [2023] NSWDC 204 at [280] where I found that the duty to minimise risks to health and safety only arises if it is not reasonably practicable to eliminate those risks).

23. The primacy of the obligation to eliminate risks to health and safety so far as is reasonably practicable is echoed throughout the Work Health and Safety Regulation 2017 (NSW).

24. The use of the word ‘requires’ in the WHS Act to my mind, means that there is something to be done by the person conducting a business or undertaking (‘PCBU’).

25. By entering a guilty plea in respect of paragraph 11(b) of Annexure A to the Amended Summons, the defendant has admitted that it failed to comply with its primary obligation pursuant to sections 17 and 19 of the WHS Act (duties to ensure health and safety) to eliminate the risk of a worker, Nurse E, being exposed to a risk of serious physical injury or illness, or serious psychiatric injury or illness, serious psychological injury or illness and/or impinging of psychological health and/or long-term health sequelae, so far as was reasonably practicable.

26. The defendant submits that its guilty plea is a complete answer to the charge, and that by virtue of section 17 of the WHS Act, the prosecutor is not entitled to proceed on the remaining measures alleged in the Annexure A to the Summons that it has nominated (see T 5.10-15 on 9 April 2024), which would have only minimised the pleaded risk so far as was reasonably practicable. To this end, the defendant submits that the measure alleged in paragraph 11(a) of the Annexure to the Summons would also have eliminated the risk, however its meaning and effect duplicate that of the measure alleged in paragraph 11(b).

The Question

27. The Question is a question that must be stated and considered separately from the facts with which it is connected in the case (see Hunter Quarries at [12] (Beech-Jones CJ at CL, Walton J and Price J agreeing), before the Court can proceed to hear the substance of the matter. It is a pure question of law regarding the proper interpretation and effect of section 17 of the WHS Act. It is a question 'whose character as a question of law can be recognised' on its face; it is not a question which requires any scrutiny of the facts, (see Hunter Quarries at [12] (Beech-Jones CJ at CL, Walton J and Price J agreeing citing Cobar Management at [109]) nor does it arise in respect of the application of the law to the facts of the case.

28. The defendant submits the only issue that the Court must resolve on this Motion is whether to submit the Question to the NSWCCA. The Motion does not require the Court to reach any factual findings or make any determination regarding the ultimate issue to which the Motion relates.

27. I accept that the only facts that are necessary for it to be clear that the Question has arisen are:

1. that the plea of guilty has been entered by the Defendant; and

2. the facts as set out in the Summons and in Annexure A to the Summons, excluding those matters to which no plea has been entered.

30. The Amended Summons provides the Details of Offence in the following terms:

‘Description of offence: On or about 8 July 2019 until and including 10 July 2019 at Blacktown Hospital, 18 Blacktown Road, Blacktown in New South Wales, Western Sydney Local Health District (the defendant), being a person conducting a business or undertaking who had a health and safety duty under section 19(1) of the Work Health and Safety Act 2011 (the Act) 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, did fail to comply with that duty and the failure to comply with that duty exposed a worker, [Nurse E], to a risk of serious physical injury or illness, serious psychiatric injury or illness and/or a serious psychological injury or illness contrary to section 32 of the Act.’

31. The defendant by its plea of guilty has admitted the timeframe of the offending, that the offence occurred at Blacktown Hospital, that the defendant is a PCBU, that they had a duty, and that they exposed Nurse E to the risks detailed in the description of the offence.

32. These are not facts that I have to determine as the defendant, by its plea, has admitted these facts. Thus, the Question to be referred does not require a determination of these facts, but the determination of a question of law. I do not accept that the Question is a hybrid question of fact and law.

33. Importantly, to my mind, the Question has not been considered and determined by a superior court. Section 7 of the Occupational Health and Safety Act 2002 (NSW) was considered in Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37, however the NSWCCA did not consider the Question that this defendant now moves the Court to submit to the NSWCCA, and it appears that on the occasions that this Court has considered section 17 of the WHS Act, it has not adopted a consistent interpretation of the provision (see Inspector Orr v Perilya Broken Hill Limited [2018] NSWDC 28, at [283]-[287], SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Limited (No 2) [2020] NSWDC 668, at [41]-[57], and SafeWork NSW v Southern Meats Pty Ltd [2023] NSWDC 204, at [272]-[278].

34. The prosecutor provided lengthy written submissions to the Court.

35. The defendant asserts, and I agree, that it appears the prosecutor contends that:

1. The Statement of Facts filed by the prosecutor with the Amended Summons that commenced the substantive proceedings formed part of the 'indictment';

2. The Question cannot be submitted to the NSWCCA without this Court first determining, as a matter of fact, which of the measures alleged would have eliminated the pleaded risk so far as was reasonably practicable, and which would have minimised the pleaded risk so far as was reasonably practicable; and

3. Its case against the defendant is pleaded cumulatively and in the alternative and, as such, the Question does not arise.

36. In my opinion, none of these matters are relevant to the determination of the Motion. In deciding whether to submit the Question to the NSWCCA, all the Court needs to be satisfied of is that it is a proper question of law. Specifically:

1. Whilst the so-titled 'Statement of Facts' is a document that is required to be filed, it has no status in the proceedings beyond that. It has not been tendered in open Court and, as it stands, contains nothing more than a set of allegations (see SafeWork NSW v NSW Western Sydney Local Health District [2023] NSWDC 279, at [29]).

2. It has not been agreed to by the defendant. By entering its guilty plea, the defendant does not plead to the Statement of Facts. The prosecutor's assertion regarding the Statement of Facts is not raised by the Question and does not need to be dealt with. No part of the current exercise requires the Court to deal with this question.

3. In the event that the NSWCCA determines the Question, the Court may be required to consider and determine, as a matter of fact, which of the pleaded measures would have eliminated and which would have minimised the risk so far as was reasonably practicable, however it is not required to consider that issue in ruling on the Motion.

4. To the extent that the prosecutor raises that the Summonses are pleaded cumulatively and in the alternative, the defendant submits that this is not a matter that the Court is required to determine to resolve the Motion. Separately, whilst the prosecutor may assert, and has asserted, that its case against the defendant is brought cumulatively and in the alternative, to my knowledge nothing in the prosecutor's conduct of the case to date demonstrates an intention to prosecute the case on the basis that the measures are cumulative.

37. I cannot see any basis identified on which either the defendant, or the Court, can determine which combination of measures the prosecutor alleges the defendant failed to implement.

38. I do not see that the operation of section 233(1) of the WHS Act is relevant to the Orders sought in the defendant’s Notice of Motion. Nor do I accept the submissions made by the prosecutor referred to above at paragraph 6(2)(f).

39. The defendant further draws my attention to correspondence between the parties which is contained in exhibit A on the Motion. This correspondence sets out some of the communications between the parties pertaining to particulars of the charges.

40. In a letter dated 16 September 2022, in response to a letter from the defendant to the prosecutor of 8 August 2022 wherein the defendant requests further and better particulars, the letter details as follows:

‘10   PARAGRAPH 11

10.1   Is it alleged by the prosecutor that the risk pleaded in paragraph 10 can be eliminated?

…’

41. The response to this question from the prosecutor at the top of page 25 of the document is as follows:

‘These are not proper requests for the following reasons:

• Questions of law are raised, namely, the meaning and application of WHS Act 2011 s 17 Management of risks;

…’

42. At page 27 of the same document the following is recorded:

‘17.1   Please identify with precision what it is that the prosecutor will advance to the Court as constituting an “adequate” mental health assessment of the patient.’

43. The response from the prosecutor was:

‘As to “adequate” as particularised in this paragraph, this involves a question of law, namely, the meaning and application of WHS Act 2011 s 17 Management of risks.

…’

44. This response is then repeated by the prosecutor in response to requests with regard to paragraph 11(i) of the Amended Summons and 11(j) of the Amended Summons, and repeated in subsequent correspondence. It is puzzling, therefore, that the prosecutor does not accept that the meaning and application of section 17 of the Act is a question of law, as set out in the Question contained within the Motion.

45. The defendant specifically requested the prosecutor identify the combination/s of the alleged measures it alleged as part of its cumulative case against it in a letter dated 8 August 2022 (see questions 10.5 and 10.6 at page 4 of Annexure B). The prosecutor replied on 16 September 2022, referring the defendant to its response to the defendant's questions at 3.10 and 3.11, which relevantly stated (see the prosecutor’s responses to questions 10.5 and 10.6 and questions 3.10 and 3.11 at pages 25 and 18-19, respectively, of Annexure B) (footnotes omitted):

'The reference to "and/or" means alternative or cumulative allegations. As stated in the prosecutor's plea response at [14], "The prosecutor is entitled to allege and prove alternative or cumulative allegations (Bowling v General Motors-Holden Pty Ltd (1975) 8 ALR 197 at 218 Woodward J said, 'Provided only a single act is charged, alternative or cumulative allegations as to the circumstances making it unlawful will not render it bad for uncertainty or duplicity.'; headnote in Serratore (1999) NSWCCA 377; (1999) 48 NSWLR 101; and Regina v Lykouras (2005) NSWCCA 8 at [21] and [25]).'

CONCLUSION

46. The crux of the prosecution’s argument appears to be their submission that the Motion concerns a question of mixed fact and law, as opposed to solely a question of law. This is based on the prosecutor’s case on sentence that the defendant’s plea of guilty to paragraph 11(b) of Annexure A to the Amended Summons is an admission to a single administrative control that is a minimisation measure and not an elimination measure, and therefore, there is an unresolved factual dispute or contest about the defendant’s purported question of law. It further suggests that paragraph 11(b) of Annexure A to the Amended Summons is an administrative control in the hierarchy of control relying on human behaviour and supervision, open to error, used on its own, designed to minimise risk exposure (see prosecutor’s submissions at [47]).

47. My understanding is that the defendant’s plea is only to the elimination measure as pleaded.

48. Further, the prosecution asserts that the Question attempts to artificially limit the sentencing proceedings by impermissibly inhibiting the sentencing Court from applying the statutory and common law purposes of sentencing and assessing the nature of the offending for the objective seriousness of an offence (see prosecutor’s submissions at [51]). However, as no convincing explanation is provided as to why this exercise must be undertaken by this Court as opposed to the NSWCCA, I do not accept that proposition.

49. The prosecutor asserts that the Question is not a pure question of law and as such, it cannot be referred to the NSWCCA. The defendant states that the Question must be a question of law and not a hybrid question of fact and law. To me the Question is the clearest question of law as it seeks statutory interpretation of the operation of section 17 of the WHS Act. I ask rhetorically, if the operation of a section in a statute is not a pure question of law, what is it? The prosecutor’s submissions included a number of other issues although, given my determination that the Question concerns an issue of law, these are secondary issues to the Motion.

50. Finally, the prosecutor states in its submissions at [18] that I made an error in my decision in SafeWork NSW v Southern Meats Pty Ltd [2023] NSWDC 204 at [280] where I found:

‘I accept that the reasonable reading of s 17 is that a PCBU must eliminate risks to health and safety. That is the primary duty under s 19(a). However, if risks to health and safety cannot be eliminated, then the PCBU must minimise the risk. I accept that the correct reading of s 17 is that if a PCBU cannot eliminate a risk to the health and safety of workers, then there is a positive obligation on the PCBU to minimise it. I accept that if a risk can be eliminated, and the PCBU does not do so, that that would in and of itself constitute a breach of the WHS Act. Further, I accept the submission of Senior Counsel for the defendant that s 17 does not create an alternative. The breach is committed if having failed to eliminate the risk, the PCBU did not minimise the risk.’

51. That may well be the case, and I may well have been incorrect in my analysis. To my mind, this makes out the very need for a definitive determination by the NSWCCA of what section 17 of the WHS Act means. In my view, the Question is appropriately confined to the issue as it arises in these proceedings. Therefore, I will exercise my discretion and refer the Question to the superior court, so that an appropriate interpretation of the section can be determined, and authority will be afforded to the proper interpretation of this section of this statute.

52. The Question raised by the defendant concerns a preliminary matter which must be resolved before the Court proceeds to the substantive hearing. To do otherwise would involve the Court hearing a wealth of evidence which may ultimately be irrelevant, resulting in both parties incurring time and cost and an unnecessary burden being placed on the Court.

53. The preferable and appropriate means for resolving this preliminary matter is for the Question to be submitted to the NSWCCA.

54. I do not propose to grant a stay of proceedings, as the matter is part-heard before me, and as such I will take no further steps before receipt of the decision of the NSWCCA.

ORDERS

55. I make the following orders:

1. (1)   I make an order in accordance with prayer 1 of the Notice of Motion filed 9 April 2024.

2. (2)   I vacate the hearing dates of 20-31 May 2024 inclusive.

3. (3)   I reserve the question of costs of the Motion.

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Decision last updated: 14 May 2024