SafeWork NSW v Western Sydney Local Health District

[2023] NSWDC 491

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

SafeWork NSW v Western Sydney Local Health District (No 2) [2023] NSWDC 491

Hearing dates:

02 November 2023

Date of orders:

15 November 2023

Decision date:

15 November 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

(1)   Grant leave to the prosecutor to file an Amended Summons in the form of the draft that was the subject of the argument on 2 November 2023, subject to any further amendment consistent with this judgment.

(2)   The prosecutor is to file the Amended Summons within 7 days of the date of publication of this judgment.

(3)   The defendant’s Notice of Motion is dismissed.

(4)   Until further order, the matter is to be judicially managed by me.

(5)   I will list the matter for directions before me on Wednesday 29 November 2023 at 10.00am.

Catchwords:

CRIME – pleading – particulars – sufficiency - the use of the “and/or” conjunction

Legislation Cited:

Criminal Procedure Act 1986

District Court Rules 1973

Work Health and Safety Act 2011

Cases Cited:

Baiada Poultry Pty Ltd v Glenister [2015] VSCA 344

Borodin v R [2006] NSWCCA 83.

Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676

Fadden v Federal Commissioner of Taxation (1943) 68 CLR 76

Johnson v Miller (1937) 59 CLR 467

Millen v Grove [1945] VLR 259

Moage Ltd (in liquidation) v Joseph Grant Jagelman and Others [1998] FCA 296

R v Sepulveda [2003] NSWCCA 131

R v Stuart NSWCCA unreported 8 March 1996

Rajendran v R [2010] NSWCCA 322

S v The Queen (1989) 168 CLR 266

St Clair v Timtalla Pty Ltd and another (No 2) [2010] QSC 480

Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015

Veysey v R (2011) 33 VR 277

Texts Cited:

SafeWork NSW, Managing psychosocial hazards at work, Code of Practice, May 2021

Category:

Procedural rulings

Parties:

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

Representation:

Counsel:
D Jordan SC with B Docking (Prosecutor)
B Hodgkinson SC with E Aitken (Defendant)

Solicitors:
Office of the Director of Public Prosecutions (Prosecutor)
Ashurst Australia (Defendant)

File Number(s):

2022/346679

Publication restriction:

None

Judgment

1. Western Sydney Local Health District (the defendant) has been charged with an offence pursuant to s 33 Work Health and Safety Act 2011 (the Act) that it breached the health and safety duty it owed to two nurses working at Cumberland Hospital. The proceedings allege that the health and safety duty owed to the nurses pursuant to s 19(1) of the Act was breached by the existence of a risk of physical or psychological harm through a failure by the defendant to adequately manage complaints, concerns and grievances in the workplace.

2. The defendant has not yet entered a plea in the proceedings.

3. By Notice of Motion filed on 11 August 2023 the defendant applied for a stay of proceedings on the basis that the pleaded case against it is oppressive and uncertain.

4. SafeWork NSW (the prosecutor) has responded by taking the pragmatic approach of preparing a draft Amended Summons (the draft), which it sought leave to file in the argument before the Court on 2 November 2023, to answer some of the complaints raised by the defendant.

5. It was common ground when the matter was argued that the draft alleviated a large proportion of the defendant’s concerns. In particular, a stay of the proceedings was no longer sought.

6. The following questions remain to be determined by the Court:

1. Does the pleading of the risk in [8] of the draft introduce an assertion of fact that the nurses were exposed to a risk of serious injury or death, when that is not an element of the s 33 offence?

2. Should the prosecutor be required to elect in the draft between the alternatives set out in s 17 of the Act, ie, to explicitly state if it alleges that the risk to health and safety could be eliminated or if the risk could only be minimised?

3. Are the words “and/or” as they appear in [9] of the draft necessary?

Relevant Law

The use of the “and/or” conjunction

7. Use of the “and/or” conjunction in a pleading is capable of giving rise to a series of additional or alternative allegations and can thereby affect the substance of the allegations: In the matter of Moage Ltd (in liquidation); Moage Ltd (in liquidation) v Joseph Grant Jagelman and Others [1998] FCA 296 (Burchett J). In Moage, the pleading related to the knowledge of a large firm of solicitors. His Honour described the offending paragraphs using the conjunction in the following terms:

The possible permutations and combinations of what would be involved in a full statement of how the knowledge in question is alleged by this pleading to have been held by partners of Mallesons would require many pages to state. No respondent should be left to compute his alleged liability from such a complex of possibilities.

In my opinion, the expression is particularly unhappy when it is used in a statement of claim, which should express precisely the foundation of the proceeding. In the present case, as has been explained, an almost endless series of additional and alternative allegations would be conveyed by an analysis of the claim made in this way.

8. The use of the conjunction has been described as “inviting trouble”: Millen v Grove [1945] VLR 259 at 260 (Gavan Duffy J), and as an “elliptical and embarrassing expression which endangers accuracy for the sake of brevity”: Fadden v Federal Commissioner of Taxation (1943) 68 CLR 76 (Williams J).

9. In St Clair v Timtalla Pty Ltd and another (No 2) [2010] QSC 480 at [14], Martin J stated:

While the conjunction “and/or” is now almost a commonplace in commercial documents and some other forms of legal drafting, it should not be used in a pleading. Pleadings are intended to clarify and concentrate the issues in an action. They will not do that if the language used leaves open to reasonable construction a large number of permutations and combinations as occurs in this case.

Particulars

10. Section 233 of the Act provides:

233 MULTIPLE CONTRAVENTIONS OF HEALTH AND SAFETY DUTY PROVISION

(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.

(2)   This section does not authorise contraventions of 2 or more health and safety duty provisions to be charged as a single offence.

(3)   A single penalty only may be imposed in relation to 2 or more contraventions of a health and safety duty provision that are charged as a single offence.

(4)   In this section

"health and safety duty provision" means a provision of Division 2, 3 or 4 of Part 2.

11. An accepted purpose of particulars is to inform the defendant of the case that it will face and allow the court to link the evidence that is given to the allegations in the originating process: Johnson v Miller (1937) 59 CLR 467.

12. An accused must be informed of how the prosecution will prove that they committed the offence. This may include requiring the prosecutor to specify acts that will be relied upon to establish a charge. This involves an election by the prosecutor which will be binding on the determination of the case and will inform the admissibility of evidence sought to be led: S v The Queen (1989) 168 CLR 266 and Veysey v R (2011) 33 VR 277.

13. The rule against duplicitous counts rests on basic considerations of fairness, namely that an accused should know the case they have to meet: S v The Queen at 335 (Gaudron and McHugh JJ).

14. Adequate particulars are essential to an accused receiving a fair trial. The degree of particularisation required depends on the nature and circumstances of the offence and no single approach can be applied to every case: Veysey v R.

15. In relation to WHS prosecutions the appellate courts have identified a number of relevant matters. The starting point stated in Kirk is that the prosecutor must identify the measures that the defendant was required to take.

16. In Baiada Poultry Pty Ltd v Glenister [2015] VSCA 344, the Court of Appeal stated at [50]:

Equally, to characterise the act or omission constituting the offence as a ‘measure’ does not deny the possibility, in an appropriate case, of specifying the act or omission by reference to a standard described as ‘adequate’. A failure to ensure an adequate system or step to achieve a particular outcome can also be described as a failure to have in place measures sufficient to achieve that outcome. If the outcome is sufficiently particularised, then it will be clear what was the act or omission alleged to constitute the offence.

17. Where the prosecution fails to particularise its case, there is a risk that the judge may provide an underlying narrative or structure to the evidence which was not in fact part of the prosecutor’s case, thereby causing the judge to become an advocate for a party: Veysey v R.

18. The court has a common law power to order that the prosecutor provide any particulars that are necessary in the interests of justice: Johnson and Marchesi v Barnes [1970] VR 434. A failure to provide particulars can lead to the dismissal of the charge.

The Court’s power to amend the Summons

19. Section 229B(1) of the Act provides that proceedings for offences are to be dealt with summarily before the Local Court or in the summary jurisdiction of the District Court.

20. Section 246 Criminal Procedure Act 1986 provides that a prosecutor may commence summary criminal proceedings in the District Court in accordance with the District Court Rules 1973 (the Rules). Rule 53.26 of the Rules provides that proceedings under section 246 Criminal Procedure Act 1986 must be commenced by the issue of a summons or a warrant for apprehension.

21. Section 15 Criminal Procedure Act 1986 provides that the term “indictment” includes any other processes by which criminal proceedings are commenced.

22. Section 20 Criminal Procedure Act 1986 provides:

20 Amendment of indictment

(1)   An indictment may not be amended after it is presented, except by the prosecutor—

(a)   with the leave of the court, or

(b)   with the consent of the accused.

(2) This section does not affect the powers of the court under section 21.

(3)   For the purposes of this section, an amendment of an indictment includes the substitution of an indictment.

23. Section 21(1) Criminal Procedure Act 1986 provides:

21 Orders for amendment of indictment, separate trial and postponement of trial

(1)   If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case.

24. Sections 20 and 21 of the Criminal Procedure Act 1986 have different purposes. Section 20 confers a discretionary power to permit an amendment and that power must be exercised appropriately. Section 21 is more complex. It requires the court to hold the opinion that the indictment is defective but that amendment can be made without injustice. That opinion is the basis on which the court’s power to make an order for amendment is enlivened. The statute does not define what constitutes a defective indictment: Rajendran v R [2010] NSWCCA 322 at [36]-[38].

25. Leave should be granted to amend an indictment unless the accused would be irreparably prejudiced in meeting the amended charge and the loss of a tactical advantage is not sufficient to refuse a grant of leave: Borodin v R [2006] NSWCCA 83.

26. It is permissible to allow amendments of formal matters and substantive matters. A count may be substituted where the facts proved justify conviction under the amended count. The question that the court must answer in exercising the discretion is whether the amendment can be made without injustice: R v Stuart NSWCCA unreported 8 March 1996.

27. The power to grant leave to amend the indictment can be made on terms, to alleviate any potential prejudice: R v Sepulveda [2003] NSWCCA 131 (Giles JA at [26] and Dunford J at [77]).

Consideration

28. I will deal with each of the questions in turn.

Question 1

29. Paragraph 8 of the draft provides:

The risk to health and safety of workers in particular [the enrolled nurse] and/or [the registered nurse], was a risk of physical and/or psychological harm, injury or illness, as a result of failing to adequately manage complaints concerns or grievances in the workplace.

30. Section 33 of the Act provides:

A person commits a Category 3 offence if--

(a) the person has a health and safety duty, and

(b) the person fails to comply with that duty.

31. The defendant contended that by naming the nurses in [8] of the draft, that it had the effect of pleading that they were exposed to the risk, which is not an element of the s 33 offence, and this could lead to an examination of the impact of the events on the nurses.

32. I am not satisfied that [8] of the draft is problematic for the reasons identified by the defendant. Even if an irrelevant matter is introduced by the pleading, it would not then be elevated to become an element of the offence and could be safely disregarded.

33. In this case, the prosecution alleges that the defendant owed a s 19(1) duty to ensure the health and safety of workers at work in the defendant’s business or undertaking. Safety could not be ensured where a risk existed to the health and safety of one or more workers.

34. The breach of duty alleged is that there was a risk of physical or psychological harm to the enrolled nurse and/or the registered nurse, as a result of the existence of a psychosocial hazard, namely poor organisational justice within the defendant by a failure to apply its documented systems when dealing with the grievances relating to the particular nurses. In this case, it was a generic risk of physical or psychological harm, identified in the relevant guidance material, that could result from exposure to harmful stress, without the need to establish that any particular condition was actually suffered by either of the nurses: see for example SafeWork NSW, Managing psychosocial hazards at work, Code of Practice, May 2021.

35. In the course of argument, I suggested that identifying the nurses in [8] may have fallen foul of the need to focus on the general class of risk, rather than the risk that manifested in the incident, as referred to in the authorities: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 and Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at [3]-[6].

36. On reflection, I understand [8] to allege that the prosecution seeks to prove the breach of duty by reference to the existence of the generic risk in the workplace as a result of the defendant’s handling of the grievances relating to the enrolled nurse and/or the registered nurse.

37. The answer to question 1 is “No”.

Question 2

38. Section 17 of the Act provides:

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.

39. Section 17 provides the standard for compliance with the duties imposed by the Act. It imposes a primary obligation to eliminate risks to health and safety, so far as is reasonably practicable. If the elimination of risks to health and safety is not reasonably practicable, then it imposes a secondary obligation to minimise risks to health and safety, so far as is reasonably practicable.

40. Paragraph [9] of the draft rolls up the primary and secondary obligations imposed by s 17 of the Act, in a way that is common in these types of pleadings. The defendant complains that the draft pleads alternative cases, in a way that is inconsistent with the obligations imposed by the language of s 17 of the Act, which are deliberately ranked in order of priority of compliance.

41. The defendant’s argument raises an interesting question of statutory construction that does not need to be resolved at this juncture. Suffice to say that it is reasonably arguable that the way that the draft is pleaded by the prosecutor is an available construction of s 17 of the Act.

42. From a practical perspective, it is important for the Court to understand if the prosecutor alleges that it was reasonably practical for the defendant to eliminate the risk, or not. This is particularly relevant to assessing a defendant’s culpability for its omissions and is thereby most relevant to penalty. However, it would also provide clarity in the structure of decision-making on the question of breach of duty.

43. In this type of case, my present view is that the pleaded risk could not be eliminated because it would still be possible for an individual to suffer physical or psychological harm in response to their experience of dealing with a workplace grievance, even if exemplary practices were applied by the PCBU to resolve the issue. This is because individuals will react idiosyncratically to potential stressors.

44. If that is so, then the draft and the determination of the case would be substantially simplified by the removal of the unnecessary and seemingly unviable alternative, alleging that the risk could be eliminated, thereby avoiding the need to determine the statutory construction issue.

45. The answer to question 2 is “No”. The prosecutor should review its position and if possible simplify the proceedings by making an election with regard to s 17 of the Act.

Question 3

46. The defendant accepted that each of the measures in [9B], [9C] and [9E] of the draft could be pleaded in the alternative and that the establishment of one of the sub-particulars pleaded in those paragraphs, could be relied in support of an argument by the prosecutor that breach of the s 19(1) duty had been established, and thereby the repetition of the words “and/or” between each of the sub-particulars were superfluous.

47. On the basis of the defendant’s acceptance that the measures were appropriately pleaded in the alternative, the prosecutor contended that there was very little utility in this question. I agree with that submission.

48. The position is clear that the measures pleaded in the sub-particulars of [9B], [9C] and [9E] of the draft are pleaded cumulatively and in the alternative. I note that there is some overlap between the pleaded measures. For example [9B(i)], pleads a failure to identify, utilise and implement all relevant systems documents of the defendant and most of not all of the measures that are identified in [9B(ii)-(x)] are provided for in the relevant systems documents.

49. It is a matter for the prosecutor as to how it wishes to proceed on this issue.

50. On the basis of the defendant’s concession, the answer to question 3 is “No”.

Orders

51. The orders I make are as follows:

1. Grant leave to the prosecutor to file an Amended Summons in the form of the draft that was the subject of the argument on 2 November 2023, subject to any further amendment consistent with this judgment.

2. The prosecutor is to file the Amended Summons within 7 days of the date of publication of this judgment.

3. The defendant’s Notice of Motion is dismissed.

4. Until further order, the matter is to be judicially managed by me.

5. I will list the matter for directions before me on Wednesday 29 November 2023 at 10.00am.

**********

Amendments

10 March 2025 - Case title includes (No 2)

Decision last updated: 10 March 2025