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District Court 2 September 2024

SafeWork NSW v Western New South Wales Local Health District

[2024] NSWDC 423

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS DUTY OF EMPLOYERS RISK OF D EATH OR SERIOUS INJURY

Citation: SafeWork NSW v Western New South Wales Local Health District [2024] NSWDC 423
Court: District Court of New South Wales
Date: 2 September 2024
Judge(s): Scotting DCJ

Background

SafeWork NSW prosecuted a regional Local Health District under s 32 of the Work Health and Safety Act 2011, alleging that the District breached its health and safety duty to a doctor employed at a regional hospital. The charge covers the period from 24 September 2020 to 15 February 2021, the latter being the date on which the doctor was diagnosed with a psychological injury. The prosecution alleges the breach arose from the defendant's failure to adequately manage a workplace grievance, specifically a bullying complaint, resulting in psychological harm to the doctor.

The proceedings have a protracted interlocutory history. Filed in October 2022, the original summons attracted a defence motion for a stay on grounds of vagueness and oppression, and competing prosecution motions to amend. After several rounds of proposed amended documents and requests for particulars, the final version under consideration was a Proposed Amended Summons (PAS) served in February 2024.

The central question before the Court was whether the prosecutor could, after the two-year limitation period had expired in February 2023, amend the summons in ways that would fundamentally change or expand the case the defendant was required to meet.

  • Whether the proposed amendments in the PAS constituted permissible refinements or impermissible expansions of the original charge, given the expiry of the limitation period
  • Whether specific paragraphs of the PAS improperly introduced new factual allegations, including a broader failure to prevent a poor working relationship from developing in the first place
  • What degree of particularisation is required under the Work Health and Safety Act 2011 for a charge of this kind
  • What powers the court holds under ss 20 and 21 of the Criminal Procedure Act 1986 to allow or refuse amendments to a summons (treated as an indictment for these purposes)

Decision

The Court distinguished between amendments that clarify or refine the existing charge and those that introduce new or significantly expanded allegations. Scotting DCJ confirmed that leave to amend should generally be granted unless the accused would be irreparably prejudiced in meeting the amended charge, and that losing a tactical advantage alone is not enough to refuse leave. However, amendments that would require substantial new investigation by the defendant, particularly after the limitation period has expired, cross into impermissible territory.

On the specific paragraphs of the PAS, the Court allowed those amendments that remained within the original factual core: that the defendant failed to adequately manage the doctor's grievance, exposing him to a risk of psychological harm. Paragraph [9] was allowed, but only in a reformulated version confined to a failure to manage grievances. The Court rejected any reading of [9] that would extend the case to allege a broader failure to prevent an underlying poor working relationship from developing at the outset, finding that this would represent a new and significant expansion of the charge after limitation had run.

Several other paragraphs, including 10(vii)-(viii), 10-(d), [11], and [12] of the PAS, were disallowed entirely. The Court found these went beyond the scope of the original charge and would cause significant prejudice to the defendant if permitted at this stage. Only 10(i)-(vi) and 10 were allowed alongside the reformulated [9].

The Court also gave practical directions for the management of the court book if the matter proceeds to hearing, requiring correspondence to be arranged in strict chronological order, free of duplicates and email chains, with policies and guidance materials in separate volumes.

Orders Made

  • Leave granted to the prosecutor to amend the summons to include paragraph [9] of the PAS in the reformulated terms set out in the judgment, and paragraphs 10(i)-(vi) and 10 of the PAS
  • Amendments in paragraphs 10(vii)-(viii), 10, 10, 10, [11], and [12] of the PAS disallowed
  • Prosecutor directed to file an Amended Summons by 4pm on 9 September 2024

Key Takeaways

  • Post-limitation amendments to a WHS summons will be refused where they would require the defendant to investigate and respond to factual allegations that were not part of the original charge, even if framed as clarifications
  • Under ss 20 and 21 of the Criminal Procedure Act 1986, a court may allow amendments where an indictment (or summons treated as such) is defective and amendment can be made without injustice, but the threshold shifts materially once the limitation period has expired
  • Adequate particularisation in WHS prosecutions requires the prosecutor to identify not only the risk of harm but the specific measures the defendant allegedly failed to take, in accordance with principles drawn from Kirk v Industrial Relations Commission of NSW and subsequent appellate authority
  • A distinction exists between narrowing or clarifying a charge on the one hand, and introducing an entirely new failure as the basis for liability on the other. The District Court here found that alleging a failure to prevent a poor working relationship from arising in the first place was a materially different case from alleging a failure to manage a grievance once raised
  • Where a prosecutor's case lacks adequate particulars, there is a recognised risk that the tribunal of fact may impose its own narrative on the evidence, effectively substituting the tribunal's reasoning for the prosecution's case

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32, 229B, 233
- Criminal Procedure Act 1986 (NSW), ss 15, 20, 21, 246
- District Court Rules 1973 (NSW), r 53.26

Cases
- Kirk v Industrial Relations Commission of NSW and Anor (2010) 239 CLR 531
- S v The Queen (1989) 168 CLR 266
- Johnson v Miller (1937) 59 CLR 467
- Baiada Poultry Pty Ltd v Glenister [2015] VSCA 344
- Veysey v R (2011) 33 VR 277
- Borodin v R [2006] NSWCCA 83
- Rajendran v R [2010] NSWCCA 322
- Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2020] NSWCCA 74
- R v Sepulveda [2003] NSWCCA 131
- Director of Public Prosecutions v Kypri (2011) VR 157