Citation: SafeWork NSW v Edstein Creative Pty Ltd (No. 2) [2023] NSWDC 180
Court: District Court of NSW
Date: 2 June 2023
Judge: Russell SC DCJ
Background
SafeWork NSW (the prosecutor) brought a work health and safety prosecution against Edstein Creative Pty Ltd, a company that manufactured and installed engineered stone benchtops between 2012 and 2018. The work involved cutting, grinding, drilling, and polishing stone products containing crystalline silica. A worker, referred to by the pseudonym AB, allegedly contracted accelerated silicosis after years of inhaling respirable crystalline silica (RCS) dust during installation work.
The Summons, filed in June 2021, alleged that Edstein failed to comply with its primary health and safety duty under section 19(1) of the Work Health and Safety Act 2011 (NSW). In April 2022, the District Court stayed the proceedings after finding that the particulars supplied by SafeWork were inadequate. The court had identified significant deficiencies: the workplace was described only as "the Newcastle and Hunter regions," the identities of allegedly exposed workers were unclear, and the Summons failed to specify which workers were exposed to which risks.
This judgment concerned SafeWork's subsequent Notice of Motion, filed in February 2023, seeking to dissolve that stay on the basis of newly supplied particulars, and to amend the Summons accordingly.
Legal Issues
- Whether the further and better particulars supplied by SafeWork were now sufficient to enable the defendant to know the case it had to meet.
- Whether the stay of proceedings made on 14 April 2022 should be dissolved.
- Whether leave should be granted to amend the Summons to reflect the updated particulars.
- Whether the prosecutor should also be required to file an Amended Statement of Facts.
Decision
Russell SC DCJ found that the further particulars provided by SafeWork in its letter of 13 February 2023 were sufficient to remedy the deficiencies identified in the first judgment. The updated particulars addressed each of the three areas the court had found lacking: when the offence was alleged to have occurred (throughout the charge period of 1 January 2012 to 1 November 2018), where it occurred (customer premises within Edstein's "Southern area," predominantly in the Newcastle and Hunter regions), and the identity of the relevant worker (AB, with the prosecution confined to that single worker rather than an undefined broader class).
On the question of the offence period, the court accepted that the charge was properly characterised as a continuing offence throughout the entire charge period, not tied to any specific date or dust concentration measurement. The prosecution's case was framed as a systemic failure to implement preventive measures across the whole period, rather than discrete incidents of exposure.
The court granted leave to amend the Summons, noting that the proposed amendments brought it into line with the refined particulars. However, the court also directed that one paragraph of the proposed Amended Summons be reworded to more precisely reflect that AB was the particular worker alleged to have been exposed to the risk of serious occupational illness.
The court expressed a firm view that SafeWork should also file an Amended Statement of Facts alongside the Amended Summons. The original Statement of Facts had become a source of potential confusion, containing material no longer relevant to the prosecution case and omitting reference to expert evidence since obtained. The court declined to leave Edstein to read through the original document and guess at what remained live.
Orders Made
- The stay ordered on 14 April 2022 was dissolved.
- Leave was granted to the prosecutor to amend the Summons in the form of Tab C to Exhibit PX 1, subject to paragraph 14 being reworded to read: "As a result of the defendant's failures a worker, in particular [AB], was exposed to a risk of acquiring serious occupational illnesses."
- The prosecutor was directed to file an Amended Statement of Facts together with the Amended Summons.
- Costs of the Notice of Motion were ordered to be costs in the cause.
- The matter was stood over to the Work Health and Safety list at 9:30am on 26 June 2023.
Key Takeaways
- The District Court confirmed that a stay for inadequate particulars does not permanently bar a prosecution. A prosecutor may apply to dissolve such a stay once proper particulars are supplied, as Russell SC DCJ had expressly foreshadowed in the first judgment.
- A continuing offence under the Work Health and Safety Act 2011 (NSW) does not relieve the prosecutor of the obligation to provide particulars sufficient to identify when and where the failure occurred, and which workers were exposed to the relevant risk.
- Adequate particulars of a continuing WHS offence may identify a charge period as a whole, without nominating specific dates or occasions of exposure, provided the nature of the alleged systemic failure is clearly articulated.
- Where the prosecution case has evolved since the original pleading, the court required an Amended Statement of Facts rather than leaving the defendant to parse the original document for what remained relevant.
- Costs of the motion were not awarded in favour of either party outright; the order that they be costs in the cause meant they will follow the ultimate outcome of the prosecution.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), s 8 (definition of "workplace"), s 19(1) (primary duty of care)
Cases
- SafeWork NSW v Edstein Creative Pty Ltd [2022] NSWDC 117 (the first judgment)
- SafeWork NSW v Solveco Pty Ltd [2021] NSWDC 298
- Allianz Australia Insurance Ltd v Newcastle Formwork Constructions Pty Ltd [2007] NSWCA 144
- WorkCover Authority of New South Wales (Inspector Wilson) v Chubb Security Australia Pty Limited [2005] NSWIRComm 263 (cited in particulars letter on the definition of "workplace")