AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 19 June 2020

SafeWork NSW v Buddco Pty Ltd

[2020] NSWDC 318

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING A BUSINESS RISK OF DEATH OR SERIOUS INJURY COSTS PROSECUTION COSTS

Citation: SafeWork NSW v Buddco Pty Ltd [2020] NSWDC 318
Court: District Court of New South Wales
Date: 19 June 2020
Judge: Strathdee DCJ

Background

SafeWork NSW brought a prosecution against a corporate defendant under section 32 of the Work Health and Safety Act 2011 (NSW), alleging a failure to discharge the primary duty of care under section 19(1). The alleged failure arose from an incident on 7 December 2017 at a worksite in Auburn, where two named workers were exposed to a risk of death or serious injury. The defendant had entered a plea of not guilty and no trial date had been set.

The prosecutor filed a Notice of Motion in March 2020 seeking leave to amend the summons by adding two further particulars to the particulars of failure already pleaded. The proposed additions specified that the defendant failed to ensure an ink holding tank was de-energised and isolated before permitting workers inside it, and failed to request that a third party install an interlocking device on the tank hatch to de-energise the tank when opened.

The defendant contested the application. The core question was whether the court had power to permit the amendment and, if so, whether it should exercise that power in the circumstances.

  • Whether the District Court had power to amend the summons under sections 20 and 21 of the Criminal Procedure Act 1986 (NSW).
  • Whether the existing summons was "defective" for the purposes of section 21(1), which conditions that discretion on the court forming such an opinion.
  • Whether granting the amendment would cause irremediable prejudice or unfairness to the defendant.
  • What weight the public interest in the proper prosecution of WHS offences should carry in the exercise of the court's discretion.

Decision

The court confirmed that sections 20 and 21 of the Criminal Procedure Act 1986 apply to summonses in WHS prosecutions, because section 15(2) of that Act defines "indictment" to include any process or document by which criminal proceedings are commenced. Both provisions were therefore available, though they operate differently.

Section 20 confers a broad discretion to grant leave to amend, unconstrained by any threshold requirement. Section 21(1), by contrast, is only enlivened once the court forms the opinion that the indictment is defective. Strathdee DCJ treated the two sections as conferring distinct but overlapping powers, drawing on the analysis in Rajendran v R [2010] NSWCCA 322.

The court found that the proposed amendment was a further particularisation of the existing alleged failure rather than the introduction of a new charge. No trial date had been set and no irremediable prejudice would flow to the defendant from allowing the amendment at this stage. The court also noted the public interest in ensuring that all measures alleged to constitute a failure under the WHS Act are properly placed before the court, treating this as a significant factor in the exercise of discretion.

Applying the principle from Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW (2007) and related authorities, the court was satisfied that the amendment could be permitted without irremediable unfairness to the defendant.

Orders Made

  • Leave granted to the prosecutor to amend the summons in accordance with the terms of the proposed Amended Summons annexed to the supporting affidavit.
  • Costs of the motion be costs in the cause.

Key Takeaways

  • The District Court confirmed that the amendment powers in sections 20 and 21 of the Criminal Procedure Act 1986 extend to summonses in WHS prosecutions, because that Act's definition of "indictment" is broad enough to encompass them.
  • Sections 20 and 21 carry different thresholds: section 20 imposes no precondition on the court's discretion to grant leave, while section 21(1) requires the court to first form an opinion that the indictment is defective before that power is enlivened.
  • A proposed amendment that merely further particularises an existing alleged failure, rather than introducing a new offence, is less likely to cause the kind of irremediable prejudice that would justify refusal, particularly where no trial date has been fixed.
  • Public interest considerations inherent in WHS legislation, including the proper hearing and determination of safety offences, are a relevant discretionary factor when a court considers whether to allow amendments to a prosecution summons.
  • Sufficient procedural latitude exists under the Criminal Procedure Act to cure deficiencies in WHS summonses where no irreparable unfairness results, consistent with the Court of Appeal's approach in Rockdale Beef Pty Ltd and GPI (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Criminal Procedure Act 1986 (NSW), ss 15(2), 16, 20, 21
- Occupational Health and Safety Act 2000 (NSW) (repealed)

Cases:
- Rajendran v R [2010] NSWCCA 322; (2010) 206 A Crim R 806
- Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW (2007) 165 IR 7
- G.P.I. (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157
- WorkCover Authority of New South Wales (Inspector Woodington) v Australand Holdings Limited and Sassall Glass and Joinery Pty Limited [2006] NSWIRComm 242
- Inspector Nikolovski v Peter Bakhos and City Civil Pty Ltd [2011] NSWIRComm 20
- Borodin v R; ED v R; Bogomiagkov v R [2006] NSWCCA 83
- Clarke v R (1993) 71 A Crim R 58