SafeWork NSW v Western Sydney Local Health District
[2023] NSWDC 279
•27 July 2023
District Court
New South Wales
Medium Neutral Citation: SafeWork NSW v Western Sydney Local Health District [2023] NSWDC 279 Hearing dates: 25 July 2023 Date of orders: 27 July 2023 Decision date: 27 July 2023 Jurisdiction: Criminal Before: Scotting DCJ Decision: (1) Until further order of the Court, pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, the document entitled “Statement of Facts” attached to the Application to Commence Proceedings for a Summary Offence on the Court file in this matter (the Statement of Facts), is not to be provided to any media representative on the grounds that non-publication of its contents is necessary to prevent prejudice to the proper administration of justice.
(2) The Statement of Facts will be placed in a sealed envelope on the Court file and is not to be opened without an order of a Judge of this Court, or the Supreme Court.
(3) Until further order of the Court, pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, the publication of the argument on this application disclosing any matter contained in the Statement of Facts is prohibited, on the grounds that non-publication of the contents of the Statement of Facts is necessary to prevent prejudice to the proper administration of justice.
Catchwords: MEDIA AND COMMUNICATIONS — Open justice — Access to court files — Application for access
MEDIA AND COMMUNICATIONS — Publication — Court Suppression and Non-publication Orders Act 2010 (NSW)
Legislation Cited: Court Suppression and Non-Publication Orders Act 2010
Criminal Procedure Act 1986
District Court Act 1973
Work Health and Safety Act 2011
Cases Cited: Empire Waste Pty Ltd v District Court of New South Wales [2013] NSWCA 394
John Fairfax & Sons Ltd v District Court of New South Wales (2004) 61 NSWLR 344
John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
R v Elomar (No 3) [2008] NSWSC 1443
Rockdale Beef Pty Ltd v Industrial Relations Commission of New South Wales [2077] NSWCA 128
Category: Procedural rulings Parties: SafeWork NSW (Prosecutor)
Western Sydney Local Health District (Defendant)Representation: Counsel:
Solicitors:
B Docking (Prosecutor)
B Hodgkinson SC with E Aitken (Defendant)
J Whealing (Sister of one of the affected workers)
Office of the Director of Public Prosecutions (Prosecutor)
Ashurst (Defendant)
L Alick (Sydney Morning Herald)
File Number(s): 2022/346679 Publication restriction: None
Judgment
Introduction
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This is an application by Michael McGowan, a journalist of the Sydney Morning Herald, for access to documents on the court file relating to a prosecution instituted by SafeWork NSW against the Western Sydney Local Health District (the defendant) for an offence pursuant to s 33 Work Health and Safety Act 2011 (the WHS Act). In particular, Mr McGowan seeks access to a document entitled “Statement of Facts” filed by the prosecutor in order to comply with rule 53.26 of the District Court Rules (the Statement of Facts), for the purpose of preparing a fair report of the proceedings.
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These proceedings were commenced on 17 November 2022.
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The Summons alleges that the defendant breached the health and safety duty provided for by s 19(1) of the WHS Act, that it owed to two nurses working at the Cumberland Hospital, in the period of 16 August 2020 to 16 November 2020, by failing to take specified reasonably practical steps to ensure their health and safety.
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Safety cannot be ensured if a risk to the health and safety of a worker exists. The existence of the risk constitutes a breach of section 19 of the WHS Act, which for present purposes also constitutes an offence under s 33 of the WHS Act.
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In this case, the prosecution alleges that the two nurses were exposed to a risk of physical or psychological harm through a failure to adequately manage complaints, concerns and grievances in the workplace.
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The proceedings have been the subject of a number of recent articles written by Mr McGowan. No criticism of Mr McGowan’s reporting of the matter was made by any party and none should be implied from this judgment. There is significant public interest in fair reporting of the proceedings.
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The defendant contends that the media should not have access to the Statement of Facts on the following bases. First, it is not a document that the media has a right of access to pursuant to s 314 Criminal Procedure Act 1986 (the CP Act). Second, the Court should not grant leave to allow the media access to the document because it contains irrelevant and unproven allegations that could lead to unfairness and prejudice the proper administration of justice.
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The sister of one of the nurses also appeared in this application, asking the Court not to release the Statement of Facts.
Relevant Law
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Proceedings for an offence against the WHS Act are dealt with summarily before the District Court, in its summary jurisdiction: s 229B of the WHS Act.
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Proceedings must be commenced in accordance with s 246 of the CP Act, in order to engage the jurisdiction of the Court: Empire Waste Pty Ltd v District Court of New South Wales [2013] NSWCA 394 at [92] and Rockdale Beef Pty Ltd v Industrial Relations Commission of New South Wales [2077] NSWCA 128 at [107]-[109].
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Section 246 of the CP Act relevantly provides:
(1) A prosecutor may apply for an order--
(a) that a person alleged in the application to have committed an offence that may be dealt with summarily by the court must appear at a time and place specified in the order to answer to the offence charged in the order, or
(b) for the apprehension of any such person for the purpose of being brought before a Judge to answer to the offence charged in the order.
(2) The application must be in accordance with the rules.
(3) The order may be made in the absence of one or both parties.
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Rule 53.26 of the District Court Rules relevantly provides:
(1) Proceedings under section 246 must be commenced in the Court by an application in the approved form for the issue of a summons or for the issue of a warrant for apprehension.
(2) The summons or warrant for apprehension must be in the approved form and must be lodged with the application.
(3) A statement of facts in respect of the offence signed by the prosecutor applying for an order under section 246 is to be lodged with the application.
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Rule 53.27 of the District Court Rules provides:
A summons together with a copy of the statement of facts lodged in accordance with rule 26(3) is to be served personally on the defendant as soon as practicable.
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The approved form for an Application includes the words:
Grounds for application: The person named in this application has committed the offence described in the attached summons, being an offence that can be dealt with summarily before the District Court. A statement as to the alleged facts upon which the Applicant relies is attached.
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Section 314 of the CP Act relevantly provides:
(1) On application to the registrar, a media representative is entitled to inspect any document relating to criminal proceedings, at any time from when the proceedings commence until the expiry of 2 working days after they are finally disposed of, for the purpose of compiling a fair report of the proceedings for publication.
(2) The documents that a media representative is entitled to inspect under this section are copies of the indictment, court attendance notice or other document commencing the proceedings, witnesses' statements tendered as evidence, brief of evidence, police fact sheet (in the case of a guilty plea), transcripts of evidence and any record of a conviction or an order.
…
(4A) This section does not limit the operation of any other Act or law under which a person may be permitted to inspect documents relating to criminal proceedings.
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In addition to s 314 of the CP Act, the Court has the power to allow the media to access material on the court file as part of its inherent power to ensure the proper administration of justice during a trial: R v Elomar (No 3) [2008] NSWSC 1443 at [10].
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The inherent or implied jurisdiction of a court extends to the prevention of an abuse of process by ensuring the capacity of the court to administer justice with fairness: John Fairfax & Sons Ltd v District Court of New South Wales (2004) 61 NSWLR 344 at [55]. By exercising its inherent jurisdiction, the court is protecting its ability to function as a court of law in future as well as in the present case. The public interest includes the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow the court’s processes to be used in an oppressive or unjust way: at [56]
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Section 171D District Court Act 1973 provides:
Subject to this Act and the rules, the procedure and practice of the District Court when exercising its criminal jurisdiction shall, so far as practicable, be the same as the procedure and practice of the Supreme Court when exercising similar jurisdiction.
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The Supreme Court Practice Note governing access to court files is Practice Note SC Gen 2, which relevantly provides:
Introduction
4. The purpose of this Practice Note is to prescribe the procedures surrounding the provision of access to court files.
Search
5. A person may not search in a registry for or inspect any document or thing in any proceedings except with the leave of the Court.
Access
6. Access to material in any proceedings is restricted to parties, except with the leave of the Court.
7. Access will normally be granted to non-parties in respect of:
pleadings and judgments in proceedings that have been concluded, except in so far as an order has been made that they or portions of them be kept confidential;
documents that record what was said or done in open court;
material that was admitted into evidence; and
information that would have been heard or seen by any person present in open court,
unless the Judge or registrar dealing with the application considers that the material or portions of it should be kept confidential. Access to other material will not be allowed unless a registrar or Judge is satisfied that exceptional circumstances exist.
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In John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 476G-477B, McHugh JA (as his Honour then was) described the principle of open justice as follows:
The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient. When the court is an inferior court, the order must do no more that is ‘necessary to enable it to act effectively within’ its jurisdiction.
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Section 7 of the Court Suppression and Non-Publication Orders Act 2010 (the Court Suppression Act) provides:
A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of:
(a) information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or
(b) information that comprises evidence, or information about evidence, given in proceedings before the court.
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Section 8 of the Court Suppression Act relevantly provides:
(1) A court may make a suppression order or non-publication order on one or more of the following grounds:
(a) the order is necessary to prevent prejudice to the proper administration of justice,…
(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.
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Section 9 of the Court Suppression Act provides:
(1) A court may make a suppression order or non-publication order on its own initiative or on the application of:
(a) a party to the proceedings concerned, or
(b) any other person considered by the court to have a sufficient interest in the making of the order.
(2) Each of the following persons is entitled to appear and be heard by the court on an application for a suppression order or non-publication order:
(a) the applicant for the order,
(b) a party to the proceedings concerned,
(c) the Government (or an agency of the Government) of the Commonwealth or of a State or Territory,
(d) a news media organisation,
(e) any other person who, in the court's opinion, has a sufficient interest in the question of whether a suppression order or non-publication order should be made.
(3) A suppression order or non-publication order may be made at any time during proceedings or after proceedings have concluded.
(4) A suppression order or non-publication order may be made subject to such exceptions and conditions as the court thinks fit and specifies in the order.
(5) A suppression order or non-publication order must specify the information to which the order applies with sufficient particularity to ensure that the order is limited to achieving the purpose for which the order is made.
Consideration
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Rule 53.26 provides that proceedings under s 246 of the CP Act must be commenced by filing an application in the approved form for a Summons (Application) requiring the person alleged to have committed a summary offence to appear before the Court. The approved form requires a statement of the alleged facts to be attached to the Application.
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The Application in this case complied with the approved form and accordingly the Statement of Facts formed part of the Application document and I am satisfied that it is an “other document commencing proceedings” in accordance with the meaning of that phrase in s 314(2) of the CP Act, and thereby a matter that a media representative would ordinarily be entitled to.
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However, I have come to the conclusion that Mr McGowan, and any other media representative, should not have access to it at the present time, for the reasons that follow.
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The procedure to commence summary proceedings in this Court for an offence under the WHS Act is unusual and presents an anomaly in the application of s 314(2) of the CP Act. Section 314(2) expressly deals with access to a “police facts sheet” after a plea of guilty has been entered. The ordinary case contemplated by the provision, is one where a statement of facts is tendered following the entry of a plea of guilty, before which, a defendant has had the opportunity to negotiate “agreed facts” on which the defendant will be sentenced, or in the absence of such an agreement, indicates that the prosecution will have to prove the facts on which it relies by calling evidence in the usual way. In the ordinary case, a statement of facts is not tendered unless it is agreed between the parties to represent the facts that the defendant should be sentenced on. It is likely that this anomaly has been created by the author of the approved form, rather than by the considered intention of the parliament to provide for a different outcome for summary offences commenced under s 246 of the CP Act.
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Absent the anomaly, Mr McGowan would be required to seek leave of the Court to inspect the Statement of Facts, which is not a document referred to in [7] of Practice Note SC Gen 2, and thereby he would have to demonstrate that exceptional circumstances existed before access would be granted. Mr McGowan contended that the public interest in the proceedings and the fact that the proceedings involved one New South Wales government instrumentality against another, satisfied the exceptional circumstances requirement. I do not accept that argument. As to the first part, the public interest in the fair reporting of court proceedings is present in all applications of the kind being considered by the Court. As to the second part, the WHS Act defines government instrumentalities, such as the defendant, as a person conducting a business or undertaking (PCBU). The WHS Act applies to all government instrumentalities and prosecution of them by SafeWork NSW is fairly common.
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The Statement of Facts has been filed in this case in accordance with the requirement set out in rule 53.26. The order made to issue the Summons was made in the absence of the parties. The Statement of Facts has not been tendered in open court and the defendant has not had an opportunity to challenge the matters contained in it. It contains matters that are irrelevant to the determination of the charge and at present it constitutes no more than a list of allegations, that may or may not be based on reliable evidence. The refusal to permit access to the Statement of Facts at this point in time does not offend the principle of open justice, because it does not relate to anything that has occurred in open court concerning this matter to date.
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The defendant has not yet entered a plea to the charge. If it enters a plea of not guilty, the media will be entitled to attend the hearing, hear the evidence and have access to the tendered exhibits. If it enters a plea of guilty, the media will be entitled to have access to the agreed statement of facts on which the defendant is to be sentenced and any other evidence given or tendered in open court.
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There are risks that publication of unsubstantiated and irrelevant allegations may adversely impact the administration of justice. There is a risk that such reporting could influence the evidence of the lay witnesses to be called. There is also a risk that the public may be misled by the publication of unsubstantiated and irrelevant allegations because they will be less likely to understand any judgment of the Court that will consider only relevant and admissible evidence.
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I have also had regard to the wishes of the sister of one of the nurses in coming to my decision.
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In all of the circumstances, I am satisfied that the Statement of Facts should not be provided to Mr McGowan or any other media representative, because the order is necessary to prevent prejudice to the proper administration of justice.
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Having regard to the conclusion that the Statement of Facts an “other document commencing proceedings”, it is necessary to make an order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 to prevent any access to the information about evidence contained in the Statement of Facts.
Orders
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The orders I make are as follows:
Until further order of the Court, pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, the document entitled “Statement of Facts” attached to the Application to Commence Proceedings for a Summary Offence on the Court file in this matter (the Statement of Facts), is not to be provided to any media representative on the grounds that non-publication of its contents is necessary to prevent prejudice to the proper administration of justice.
The Statement of Facts will be placed in a sealed envelope on the Court file and is not to be opened without an order of a Judge of this Court, or the Supreme Court.
Until further order of the Court, pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010, the publication of the argument on this application disclosing any matter contained in the Statement of Facts is prohibited, on the grounds that non-publication of the contents of the Statement of Facts is necessary to prevent prejudice to the proper administration of justice.
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Decision last updated: 27 July 2023
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