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District Court 13 August 2021

SafeWork NSW v Secretary of the Ministry of Health on behalf of the Ambulance Service of NSW

[2021] NSWDC 397

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS WHETHER A MISNOMER OR MISDESCRIPTION DUTY OF THE COURT TO MAKE AN AMENDMENT

Citation: SafeWork NSW v Secretary of the Ministry of Health on behalf of the Ambulance Service of NSW [2021] NSWDC 397
Court: District Court of New South Wales
Date: 13 August 2021
Judge: Strathdee DCJ

Background

SafeWork NSW commenced two work health and safety prosecutions in April 2020 following an investigation into the death of paramedic Anthony Jenkins. The investigation examined whether the Ambulance Service of NSW had failed to comply with its duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) to ensure the health and safety of workers between April 2017 and April 2018. The two summonses named the defendant as "Secretary of the Ministry of Health on behalf of the Ambulance Service of NSW," with the first alleging a Category 2 offence under s 32 of the WHS Act and the second alleging an offence under s 33 in the alternative.

SafeWork NSW sought, by Notice of Motion, to amend both summonses and accompanying statements of facts. The primary amendment sought was to change the defendant's name to "Crown in the Right of New South Wales in respect of the Ambulance Service of NSW." Consequential amendments to the particulars of the alleged offences were also sought to reflect that change.

Neither the named defendant (the Health Secretary) nor the proposed corrected defendant (the Crown) opposed the amendments. However, the Court noted that the attitude of the parties was not itself determinative of the question.

  • Whether the District Court had power to amend the summonses to change the defendant's name in a WHS prosecution.
  • Whether the proposed amendment amounted to correcting the name of the same defendant (a misnomer or misdescription), or substituting an entirely new defendant, which would fall outside the Court's power.
  • What legal entity, properly understood under the relevant statutory framework, was the appropriate defendant in respect of the Ambulance Service of NSW's operations.

Decision

The District Court confirmed it holds a broad power to amend summonses in WHS prosecutions, drawing on Part 2 of Chapter 2 of the Criminal Procedure Act 1986 (NSW), including ss 16, 20 and 21. Section 15(2) of that Act extends the word "indictment" to any document by which criminal proceedings are commenced, so those provisions apply equally to summonses. The power to amend is, however, confined to correcting the name of the same defendant and does not extend to substituting a different party.

The Court then examined the statutory structure governing the Ambulance Service of NSW. Critically, the Ambulance Service is not a legal person or body corporate. Under s 67B of the Health Services Act 1997 (NSW), it is the Health Secretary who provides ambulance services on behalf of the Crown. The Health Administration Corporation, though a body corporate, exercises functions of the Health Secretary by delegation. Under s 245(2) of the WHS Act, conduct of a Crown officer acting within actual or apparent authority is deemed to be conduct of the Crown itself.

On the evidence, Strathdee DCJ was satisfied that the summonses had always intended to prosecute the Crown in the Right of New South Wales. The identification of the Health Secretary was understood as identifying the Crown's particular function rather than targeting the Secretary as a separate legal person in their own right. The proposed amendment therefore corrected a misnomer or misdescription and did not bring in a new or different party.

The Court was satisfied there was no prejudice to the defendant and no other reason to refuse the orders. Leave to amend both summonses and the statements of facts was granted accordingly, with no order as to costs.

Orders Made

  • Leave granted to amend the Summons and Statement of Facts in proceeding no. 2020/107796 in accordance with the Proposed Amended Summons and Amended Statement of Facts (Annexure F to the Miller affidavit of 9 April 2021).
  • Leave granted to amend the Summons and Statement of Facts in proceeding no. 2020/107790 in accordance with the Proposed Amended Summons and Amended Statement of Facts (Annexure G to the Miller affidavit of 9 April 2021).
  • No order as to costs.

Key Takeaways

  • The District Court confirmed that its power to amend a summons in a WHS prosecution is confined to correcting the name of the same defendant; it does not extend to substituting an entirely new party.
  • Where a defendant is misnamed or misdescribed, but the party intended to be prosecuted remains the same throughout, the amendment is permissible and amounts to correction rather than substitution.
  • The Ambulance Service of NSW is not a legal person and cannot itself be prosecuted for WHS offences; any charge relating to its operations must be brought against a legal person who is a person conducting a business or undertaking (PCBU) in respect of those operations.
  • Under s 245(2) of the WHS Act, conduct by a Crown officer acting within actual or apparent authority is deemed to be conduct of the Crown, making the Crown the proper defendant where the relevant operations are carried out on its behalf.
  • Non-opposition by the named defendant does not determine the outcome of an amendment application; the Court must independently assess whether the amendment is one it has power to make.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32, 33, 245(2), 248(6)(b)(i)
- Criminal Procedure Act 1986 (NSW), ss 15, 16, 20, 21
- Health Administration Act 1982 (NSW), ss 8, 8A, 9
- Health Services Act 1997 (NSW), ss 67A, 67B, 67K
- Government Sector Employment Act 2013 (NSW), ss 3, 23, 25, Sch 1
- Constitution Act 1902 (NSW), s 50D
- Occupational Health and Safety Act 2000 (NSW)

Cases
- G.P.I. (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157; (2011) 207 IR 93
- Nash v Glennies Creek Coal Management Pty Ltd [2013] NSWIRComm 60
- Epacris Pty Ltd v Director-General, Department of Natural Resources (2007) 69 NSWLR 507
- Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW (2007) 165 IR 7
- Manpac Industries Pty Ltd v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190
- Krivoshev v Royal Society for the Prevention of Cruelty to Animals Inc [2005] NSWCA 76
- Inspector Dell v TAFE Commission [2004] NSWIRComm 196
- Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; [1991] HCA 45
- R v Aldridge (1993) 67 A Crim R 371
- R v Cox [1999] NSWCA 62
- R v Lister (1955) 72 WN (NSW) 491
- McLean v Case & Deignan Pty Ltd [1961] NSWLR 873
- R v Norkett, Ex parte Geach (1915) 139 LT 316