Citation: SafeWork NSW v Western Sydney Local Health District [2023] NSWDC 279
Court: District Court of New South Wales
Date: 27 July 2023
Judge: Scotting DCJ
Background
SafeWork NSW commenced proceedings against Western Sydney Local Health District, alleging a breach of the health and safety duty owed to two nurses at Cumberland Hospital under the Work Health and Safety Act 2011. The prosecution alleged that the health district failed to adequately manage workplace complaints, concerns and grievances, thereby exposing the nurses to a risk of physical or psychological harm between August and November 2020.
A journalist from the Sydney Morning Herald applied for access to the Statement of Facts filed by the prosecutor. Under the District Court Rules, that document was required to be attached to the application to commence proceedings. The journalist sought the document to assist in preparing a fair report of the proceedings.
The defendant opposed access, as did the sister of one of the nurses. The defendant argued that the media had no entitlement under the relevant legislation and that the document contained irrelevant and unproven allegations whose publication could prejudice the proper administration of justice.
Legal Issues
- Whether the Statement of Facts filed under rule 53.26 of the District Court Rules constitutes an "other document commencing proceedings" to which media representatives are entitled under section 314(2) of the Criminal Procedure Act 1986.
- If so, whether the court should nonetheless withhold access to the Statement of Facts at this stage of the proceedings.
- Whether the public interest in fair reporting and the government-instrumentality nature of the prosecution satisfied the "exceptional circumstances" test for access to documents not covered by section 314.
Decision
Issue 1: Entitlement under section 314(2) of the Criminal Procedure Act 1986
The court found that the Statement of Facts formed part of the application to commence proceedings and therefore constituted an "other document commencing proceedings" within the meaning of section 314(2) of the Criminal Procedure Act 1986 (at [25]). On that basis, a media representative would ordinarily be entitled to access it.
However, the court identified a procedural anomaly. Section 314(2) was designed for the ordinary case where a statement of facts is tendered after a plea of guilty has been entered, following negotiation of agreed facts between the parties. In this context, the Statement of Facts was attached to the originating application solely because the approved form required it, and not because it had been agreed upon or tested in any way (at [27]).
Issue 2: Whether access should be withheld
The court determined that access should nonetheless be refused. The Statement of Facts had not been tendered in open court, the defendant had not had any opportunity to challenge its contents, and it contained matters irrelevant to the charge as well as unproven allegations that may or may not rest on reliable evidence (at [29]). The court found that refusing access at this stage did not offend the principle of open justice, because no substantive step in the proceedings had yet occurred in open court (at [29]).
The court identified two risks from premature publication: that unsubstantiated allegations could influence the evidence of lay witnesses, and that the public could be misled by material that a court would ultimately disregard as inadmissible or irrelevant (at [31]). Accordingly, the court was satisfied that withholding the document was necessary to prevent prejudice to the proper administration of justice. The court also had regard to the wishes of the nurse's sister (at [32]).
Issue 3: Exceptional circumstances
The court rejected the argument that the public interest in fair reporting and the government-versus-government nature of the prosecution together satisfied any exceptional circumstances test (at [28]). The public interest in fair reporting is present in all such applications and does not of itself constitute an exceptional circumstance. Prosecutions of government instrumentalities by SafeWork NSW are also relatively common, meaning that feature did not elevate the case to an exceptional one (at [28]).
Orders Made
- Until further order, the Statement of Facts is not to be provided to any media representative, on the ground that non-publication is necessary to prevent prejudice to the proper administration of justice.
- The Statement of Facts is to be placed in a sealed envelope on the court file, not to be opened without an order of a Judge of the District Court or the Supreme Court.
- Until further order, publication of any argument from the access application that discloses material contained in the Statement of Facts is prohibited, on the same ground.
All orders were made under section 7 of the Court Suppression and Non-Publication Orders Act 2010.
Key Takeaways
- The District Court confirmed that a Statement of Facts attached to an application to commence summary proceedings under the Work Health and Safety Act 2011 can constitute an "other document commencing proceedings" within section 314(2) of the Criminal Procedure Act 1986, giving rise to a prima facie entitlement to media access (at [25]).
- A procedural anomaly arises where the approved form for commencing WHS Act proceedings requires a Statement of Facts to be attached before any plea is entered or facts are agreed upon, unlike the ordinary situation that section 314(2) was designed to address (at [27]).
- Entitlement to access under section 314(2) is not absolute: the court retains power under the Court Suppression and Non-Publication Orders Act 2010 to withhold a document where non-publication is necessary to prevent prejudice to the proper administration of justice (at [33]-[34]).
- Open justice does not require disclosure of documents that have not been tendered or tested in open court proceedings; the principle applies to what occurs publicly in court, not to every document on the file (at [29]).
- Neither the general public interest in fair reporting of court proceedings nor the fact that proceedings involve one government instrumentality prosecuting another constitutes exceptional circumstances sufficient to justify access to documents beyond those covered by section 314 (at [28]).
Legislation and Cases Referenced
Legislation
- Court Suppression and Non-Publication Orders Act 2010
- Criminal Procedure Act 1986
- District Court Act 1973
- Work Health and Safety Act 2011
Cases
- Empire Waste Pty Ltd v District Court of New South Wales [2013] NSWCA 394
- John Fairfax & Sons Ltd v District Court of New South Wales (2004) 61 NSWLR 344
- John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
- R v Elomar (No 3) [2008] NSWSC 1443
- Rockdale Beef Pty Ltd v Industrial Relations Commission of New South Wales [2077] NSWCA 128