Citation: SafeWork NSW v Western Sydney Local Health District [2024] NSWDC 174
Court: District Court of New South Wales
Date: 14 May 2024
Judge: Strathdee DCJ
Background
SafeWork NSW commenced proceedings against a Local Health District (the defendant) following an incident in July 2019 in which a registered nurse (referred to as "Nurse E") was exposed to a risk of serious physical, psychiatric, or psychological injury over three days. The prosecution alleged the defendant breached its primary duty of care under section 19 of the Work Health and Safety Act 2011 (NSW) (WHS Act), in contravention of section 32 (and alternatively section 33). The proceedings were commenced in July 2021 and an Amended Summons was filed in May 2023, particularising a range of measures the defendant allegedly failed to implement.
On 9 April 2024, the defendant entered a guilty plea to one particular measure alleged in the Amended Summons, being paragraph 11(b), which the defendant characterised as an elimination measure. It simultaneously resisted the prosecution's intention to proceed on the remaining measures alleged in paragraphs 11(c)(i)-(iii), (e), (g) and (h), which it characterised as minimisation measures.
The defendant then filed a Notice of Motion seeking to refer a question of law to the NSW Court of Criminal Appeal (NSWCCA) and, as a consequential order, to stay the proceedings pending that referral. The prosecutor strongly opposed both steps, arguing the case should proceed immediately to a disputed facts sentencing hearing.
Legal Issues
- Whether the District Court had power under section 5E of the Criminal Appeal Act 1912 (NSW) to submit a question of law to the NSWCCA.
- Whether the proposed question constituted a pure question of law suitable for referral, rather than a question of mixed fact and law.
- Whether section 17 of the WHS Act makes it impermissible for the prosecution to pursue particulars alleging measures that would only minimise (not eliminate) a risk, in circumstances where the defendant has already pleaded guilty to a particular that would have eliminated that risk.
- Whether proceedings should be stayed pending any referral to the NSWCCA.
Decision
Strathdee DCJ granted the Motion to refer the question to the NSWCCA, exercising her discretion to do so on the basis that the question raised a genuinely unsettled point of statutory interpretation under section 17 of the WHS Act. Her Honour noted that she had previously analysed section 17 in SafeWork NSW v Southern Meats Pty Ltd [2023] NSWDC 204, and that the prosecutor's submissions in the present case suggested that analysis may have been incorrect. That very possibility, her Honour reasoned, demonstrated the need for a definitive determination by the superior court.
Her Honour accepted that the question was appropriately confined to the issue as it arose on the facts of these proceedings. She found that resolving the question before proceeding to the substantive hearing was the preferable course because, without it, the court would potentially receive a large volume of evidence that might ultimately be rendered irrelevant, imposing unnecessary time and cost on both parties and the court.
On the question of a stay, her Honour declined to grant one. Because the matter was already part-heard before her, she indicated she would simply take no further steps until the NSWCCA delivered its decision. The scheduled hearing dates of 20 to 31 May 2024 were vacated.
The prosecutor's competing arguments, including that the purported question was one of mixed fact and law, that cumulative or alternative allegations are standard prosecutorial practice, and that the plea carried no broader admission than the essential legal ingredients of the offence admitted, were noted at length in the judgment but did not persuade the court to decline the referral.
Orders Made
- The question of law was referred to the NSW Court of Criminal Appeal in accordance with prayer 1 of the Notice of Motion filed 9 April 2024.
- The hearing dates of 20 to 31 May 2024 (inclusive) were vacated.
- The question of costs of the Motion was reserved.
Key Takeaways
- The District Court exercised its discretion under section 5E of the Criminal Appeal Act 1912 (NSW) to refer a question of law to the NSWCCA, finding that the proper interpretation of section 17 of the WHS Act remained sufficiently unsettled to warrant referral to the superior court.
- A guilty plea to one particular in a WHS Act charge does not necessarily resolve all prosecution particulars: the court acknowledged a live dispute about whether pleading guilty to an elimination measure forecloses prosecution on associated minimisation measures under the same charge.
- Under section 17 of the WHS Act, the correct relationship between the obligations to eliminate and to minimise risk has not yet been definitively settled by appellate authority. Strathdee DCJ openly acknowledged her own prior analysis in Southern Meats may have been incorrect.
- Referring a preliminary question of law was preferred over proceeding immediately to a full sentencing hearing, on the basis that resolving the legal question first avoids the risk of conducting lengthy evidentiary proceedings that may prove unnecessary.
- A stay of proceedings was refused even where a referral was granted, on the basis that the matter was already part-heard and the court could simply await the NSWCCA's decision without formally staying the matter.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 17, 18, 19, 32, 33, 233
- Work Health and Safety Regulation 2017 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5E
- Occupational Health and Safety Act 2002 (NSW)
- District Court Act 1973 (NSW)
- District Court Rules 1973 (NSW)
Cases:
- Orr v Cobar Management Pty Ltd [2020] NSWCCA 220
- Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39
- SafeWork NSW v Southern Meats Pty Ltd [2023] NSWDC 204
- SafeWork NSW v NSW Western Sydney Local Health District [2023] NSWDC 279
- SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Limited (No 2) [2020] NSWDC 668
- Inspector Orr v Perilya Broken Hill Limited [2018] NSWDC 28
- Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
- Jago v District Court of New South Wales (1989) 168 CLR 23
- R v Macdonald; R v Edward Obeid; R v Moses Obeid (No 7) [2019] NSWSC 1916
- R v Thomson; R v Houlton (2000) 14 NSWLR 374
- R v Winchester (1992) 58 A Crim R 345
- Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240
- Bowling v General Motors-Holden Pty Ltd (1975) 8 ALR 197
- Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd (2004) 137 LGERA 280