Citation: SafeWork NSW v Qantas Ground Services Ltd (No. 2) [2023] NSWDC 146
Court: District Court of New South Wales
Date: 10 May 2023
Judge: Russell SC DCJ
Background
SafeWork NSW brought four criminal summonses against a ground services company (the defendant employer) arising from its treatment of an employee who was a Health and Safety Representative (HSR). The charges all arose under s 104(1) of the Work Health and Safety Act 2011 (NSW), which prohibits discriminatory conduct engaged in for a "prohibited reason." The underlying conduct concerned events in late January and early February 2020, when workers raised COVID-19 concerns about cleaning aircraft arriving from China.
The four summonses divided into two pairs. Two summonses (the "Directions" charges) alleged that the dominant reason for the discriminatory conduct was the employee's exercise of his HSR function in directing workers to cease unsafe work under s 85 of the Act. The other two summonses (the "Issues and Concerns" charges) alleged that the dominant reason was the employee raising work health and safety concerns with co-workers. SafeWork made clear it was pursuing the Directions charges as primary charges and the Issues and Concerns charges only as alternatives, not seeking convictions on all four simultaneously.
The defendant applied for a stay of all four proceedings unless SafeWork withdrew two of the summonses. Critically, this was the second such application. The first had been made before trial commenced and was refused in November 2022. The second application was filed during the trial, after SafeWork had closed its case and called all of its evidence.
Legal Issues
- Whether the court should stay all four proceedings unless the prosecutor elected to withdraw either the two primary or the two alternative summonses
- Whether running two pairs of alternative charges, each pleading a different dominant reason for the same conduct, was procedurally unfair to the defendant
- Whether the presumption under s 110(2) of the Work Health and Safety Act 2011 (NSW), once engaged, created any particular unfairness in maintaining four charges simultaneously
- Whether a plea of autrefois acquit (the principle that a person cannot be tried twice for the same offence) could be raised at the end of trial in respect of the alternative charges
- Whether the position of the defendant had materially changed since the first stay application was refused in November 2022
Decision
The District Court dismissed the application. Russell SC DCJ noted that the application was substantively identical to the one already refused before trial, and that the defendant had not identified any aspect of the evidence called during the trial that placed it in a materially different position from where it stood before trial began. The mere fact that the prosecutor had since closed its case was not, of itself, a basis for reaching a different conclusion.
The court accepted SafeWork's characterisation of the four charges as two sets of alternative charges, a familiar and permissible prosecutorial approach. SafeWork had stated clearly it would not pursue convictions on all four summonses simultaneously. If the primary Directions charges succeeded, the alternative Issues and Concerns charges would be dismissed. Only if the Directions charges failed would SafeWork press the alternatives.
On the autrefois acquit point, the court rejected the defendant's submission that this created an insurmountable procedural problem. The court accepted that such a plea could properly be argued at the conclusion of the trial if the primary charges failed, and the defendant would not be denied the opportunity to raise it. Senior counsel for SafeWork conceded this point.
The court's preliminary view was that costs should follow the event, meaning the defendant should bear SafeWork's costs of the application. However, given uncertainty about whether a costs order could be made at this interlocutory stage under s 257B of the Criminal Procedure Act 1986 (NSW), and because the parties had not addressed this in submissions, the question of costs was reserved to the conclusion of the proceedings.
Orders Made
In each of the four matters:
- The application dated 1 February 2023 brought by the defendant was dismissed.
- Costs of the application were reserved.
Key Takeaways
- A defendant cannot revive a previously refused stay application simply because the prosecutor has since closed its case, absent new evidence or changed circumstances arising from the trial itself.
- Prosecuting alternative charges that plead different dominant reasons for the same underlying conduct is a recognised and permissible approach under the Work Health and Safety Act 2011 (NSW), provided the prosecution makes clear it does not seek convictions on all charges simultaneously.
- Under s 110(2) of the Work Health and Safety Act 2011 (NSW), once certain preconditions are met, a presumption arises that the alleged reason was the dominant reason for discriminatory conduct, shifting the burden to the defendant to disprove this on the balance of probabilities.
- A plea of autrefois acquit in respect of alternative charges remains available to a defendant at the conclusion of a trial and cannot be denied as a matter of procedure.
- Where a costs question under s 257B of the Criminal Procedure Act 1986 (NSW) has not been addressed in submissions, a court may properly reserve that question rather than resolve it without argument.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 85, 104, 105, 106, 110, 233
- Criminal Procedure Act 1986 (NSW), ss 247V, 247W, 257B
- District Court Rules 1973 (NSW), r 10, Pt 53
Cases:
- SafeWork NSW v Qantas Ground Services Pty Ltd [2022] NSWDC 540 (the earlier stay application by the same defendant, refused before trial commenced)