Citation: SafeWork NSW v Edstein Creative Pty Ltd [2022] NSWDC 117
Court: District Court of New South Wales
Date: 14 April 2022
Judge: Russell SC DCJ
Background
SafeWork NSW prosecuted a manufactured stone products company (the defendant) under the Work Health and Safety Act 2011 (NSW). The charge alleged that the defendant failed to discharge its duty as a person conducting a business or undertaking to ensure the health and safety of its workers, thereby exposing them to a risk of serious illness, including accelerated silicosis caused by inhaling respirable crystalline silica (RCS). The alleged period of offending spanned from 1 January 2012 to 1 November 2018, with the workplace described broadly as the "Newcastle and Hunter regions."
The defendant employed a worker (referred to in the judgment as AB, a pseudonym) as an installer of manufactured stone products. AB's work involved cutting, grinding, drilling, and polishing materials containing crystalline silica. The prosecution alleged the defendant failed to implement adequate dust controls, including failing to use wet cutting, dust extraction systems, or to ban dry cutting.
The defendant filed a motion seeking either dismissal or a stay of the summons. It argued the prosecution was brought outside the two-year limitation period under s 232 of the Act, and separately that the particulars of the offence were inadequate.
Legal Issues
- Whether the prosecution was commenced outside the two-year limitation period prescribed by s 232 of the Work Health and Safety Act 2011 (NSW), such that the proceedings should be dismissed.
- Whether the particulars provided in the summons and its annexure were adequate to inform the defendant of the case it had to meet, specifically regarding the date and location of the alleged offence and the identity of workers said to have been exposed to risk.
Decision
Limitation period: The court examined s 232(1)(a), which provides that proceedings must be brought within two years after the offence first comes to the notice of the regulator. The court reviewed a series of pre-24 June 2019 events, including workplace inspections, dust sampling reports, taskforce involvement, and a safety forum presentation. None of these, individually or collectively, was found to have given the regulator notice of the commission of the offence. The critical event was an email from the defendant to SafeWork NSW on 16 May 2019 referring to unnamed workers who had potentially contracted silicosis. The court found it was not until after that date that the regulator had sufficient notice to start time running, placing the summons (filed 24 June 2021) within the limitation period. The application to dismiss or permanently stay the summons on this ground was refused.
Adequacy of particulars: The court identified multiple deficiencies in the pleading. The date range nominated (nearly seven years) was not connected with meaningful specificity to any workers other than AB. The nominated "workplace" (the Newcastle and Hunter regions) was described as too broad, given the statutory definition requires identification of places where work is actually carried out. The court further noted that references to "workers" beyond AB were not particularised, and that two additional workers mentioned in the statement of facts (Mr Putney and Mr Whyte-Butler) were not clearly brought within the charge as pleaded.
The court held that the defendant was entitled to know, with proper specificity, when the offence was alleged to have occurred, where it occurred, and the identity of each worker said to have been exposed to the pleaded risk. Because the prosecutor had not provided adequate particulars and had not indicated it was unable to do so, a stay was ordered until proper particulars were supplied. The stay was framed as preserving the opportunity for the prosecutor to remedy the deficiencies rather than as a final resolution of the proceedings.
Costs: Because the defendant failed on the limitation period argument (which consumed most of the documentary evidence) but succeeded on particulars (which occupied most of the hearing), the court ordered each party to bear its own costs of the motion.
Orders Made
- The summons is stayed until the prosecutor properly particularises:
- When the offence is alleged to have been committed
- Where the offence is alleged to have been committed
- The identity of each worker said to have been exposed to the pleaded risk
- Each party is to pay its own costs of the defendant's Notice of Motion
- Proceedings stood over to the Work Health and Safety directions list at 9:30am on 2 May 2022
Key Takeaways
- Under s 232(1)(a) of the Work Health and Safety Act 2011 (NSW), the two-year limitation period runs from when the offence "first comes to the notice of the regulator." The District Court confirmed this is a factual inquiry, and that general regulatory engagement with a business (such as inspections, taskforce participation, or safety forums) does not necessarily constitute notice of the commission of an offence.
- A description of the workplace as an entire geographic region will not satisfy s 8 of the Act, which defines "workplace" as a place where work is carried out or where a worker goes while at work.
- Where a prosecution alleges a duty was owed to workers generally, the particulars must identify those workers by name or sufficient description. A charge cannot validly expand beyond named individuals without pleading who else is encompassed.
- Inadequate particulars in a WHS prosecution summons can result in a stay of proceedings, leaving the prosecutor the opportunity to remedy the deficiency by supplying proper particulars.
- Costs in interlocutory WHS applications may be apportioned by issue, and a party that partially succeeds and partially fails may be ordered to bear its own costs rather than receiving or paying costs overall.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 8, 19, 32, 232
Cases:
- Director-General of the Department of Land and Water Conservation v Greentree & Anor [2003] NSWCCA 31
- Sloggett v Adams (1953) 70 WN (NSW) 206