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District Court 13 July 2020

Department of Planning and Environment v Chaplin; Department of Planning and Environment v Moolarben Coal Operations Pty Ltd

[2020] NSWDC 361

Other

Citation: Department of Planning and Environment v Chaplin; Department of Planning and Environment v Moolarben Coal Operations Pty Ltd [2020] NSWDC 361
Court: District Court of New South Wales
Date: 13 July 2020
Judge: Scotting DCJ

Background

Two defendants faced charges under the Work Health and Safety Act 2011 (WHS Act) arising from a mine blast at Ulan, New South Wales on 17 May 2017. Moolarben Coal Operations Pty Ltd (MCO), the mine operator, and Michael Chaplin, a Drill and Blast Engineer engaged by MCO, each faced allegations that they failed to comply with their respective health and safety duties and thereby exposed a five-person blast crew to a risk of death or serious injury. The incident involved a blast that projected flyrock toward workers positioned only 246 metres from the blast, well within the designated 500-metre Personnel Exclusion Zone, and later saw fumes travel in the direction of the crew.

The prosecution applied for leave to file a Third Amended Summons in both proceedings. Two amendments were sought: the substitution of a new named inspector as prosecutor (the original prosecutors having left the regulator's employ), and substantive amendments to the pleaded case against each defendant.

MCO did not oppose the amendments. Mr Chaplin opposed both the substitution of the prosecutor and the substantive amendments to his charge, raising objections about the sufficiency of evidence supporting the new prosecutor's authorisation and arguing that the amendments were improperly derived from without prejudice settlement communications.

  • Whether the District Court had power under sections 20 and/or 21 of the Criminal Procedure Act 1986 to amend a summons in summary WHS proceedings.
  • Whether the proposed substitute prosecutor held sufficient written authorisation from the regulator to bring and continue proceedings under section 230 of the WHS Act.
  • Whether amendments to the charge against Mr Chaplin impermissibly expanded the case he had to meet at trial.
  • Whether the proposed amendments were tainted by their derivation from without prejudice communications and should be refused on that basis.

Decision

Power to amend and substitution of prosecutor

The Court was satisfied that sections 20 and 21 of the Criminal Procedure Act 1986 applied to summonses in these proceedings, because section 15 of that Act defines "indictment" to include any process by which criminal proceedings are commenced. Both provisions were therefore enlivened. The Court accepted that some amendment was needed to regularise the proceedings given both original prosecutors had left the regulator. The Court examined the evidence concerning the proposed substitute inspector's written authorisation and, applying section 230 of the WHS Act, was satisfied the authorisation was sufficient.

Amendments to the charge against Mr Chaplin

The Court applied the established principle that leave to amend should be granted unless the accused would be irreparably prejudiced in meeting the amended charge, and that the mere loss of a tactical advantage does not justify refusal. The Court concluded that the substantive amendments to Mr Chaplin's charge, including a refinement of the allegation from "directing" the blast crew to "advising or recommending" they move outside the exclusion zones, did not create injustice. The distinction between directing and recommending was not considered significant in the context of the pleaded duty.

Without prejudice objection

The Court rejected Mr Chaplin's argument that the amendments should be refused because they were derived from without prejudice communications. At common law, the without prejudice rule operates to prevent communications made in genuine settlement attempts from being adduced in evidence as admissions. The prosecution was not seeking to lead evidence of the content of those communications. The Court confirmed, consistent with authority, that there is no prohibition on the derivative use of information obtained during settlement negotiations, provided the communications themselves are not disclosed in evidence.

Orders Made

  • Leave granted to the prosecutor to file the Third Amended Summons in the form proposed, on or before 4.00pm on 27 July 2020.
  • The prosecutor directed to serve the Third Amended Summons on or before 4.00pm on 3 August 2020.
  • Costs of the amendment application and case readiness hearings to date reserved.

Key Takeaways

  • The District Court confirmed that the term "indictment" in sections 20 and 21 of the Criminal Procedure Act 1986 encompasses summonses used to commence summary proceedings, so both amendment provisions are available in WHS prosecutions brought in the District Court's summary jurisdiction.
  • Leave to amend a summons (or indictment) should be granted unless the accused faces irreparable prejudice in meeting the amended charge. The loss of a tactical advantage does not constitute sufficient grounds for refusal.
  • Under section 230 of the WHS Act, a substitute inspector may continue proceedings commenced by a predecessor, provided written authorisation from the regulator is established to the court's satisfaction.
  • The without prejudice rule operates to exclude settlement communications from being adduced in evidence as admissions, but does not prevent a party from making derivative use of information obtained during those negotiations, so long as the communications themselves are not disclosed in evidence.
  • Where proceedings have not yet been listed for trial, courts are more likely to permit amendments that expand or refine the factual allegations, particularly where any prejudice is characterised as tactical rather than substantive.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 28, 32, 229B, 230
- Criminal Procedure Act 1986 (NSW), ss 15, 20, 21, 246
- District Court Rules 1973 (NSW), r 53.26
- Evidence Act 1995 (NSW)

Cases
- Ahmad v The Queen [2006] NSWCCA 177
- Borodin v R [2006] NSWCCA 83
- Cutts v Head [1984] Ch 290
- Daya v CX Reinsurance Company Ltd [2012] NSWSC 1621
- GPI General Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157
- Hong Kong Bank of Australia Ltd v Murphy (1992) NSWLR 512
- Ove Arup Pty Ltd v Industrial Court of New South Wales (2006) 149 IR 193
- R v Deutrom [2018] NTSC 74
- R v Lu [2007] NSWSC 1259
- R v Stuart, NSWCCA, unreported, 8 March 1996
- Rajendran v R [2010] NSWCCA 322
- Ramjutton v R [2015] VSCA 309