Inspector Anthony Nicholson (WorkCover Authority of New South Wales) v Bradley Tracey and Others [2009] NSWIRComm 98

Inspector Anthony Nicholson (WorkCover Authority of New South Wales) v Bradley Tracey and Others [2009] NSWIRComm 98

The amendment to paragraph (d)(i) arose out of the same factual circumstances as the existing allegations and, by reason of s 31(1) of the Occupational Health and Safety Act 2000, was a factual particular further explaining how the alleged failures under s 8(1) and s 8(2) occurred. It did not create a new legal element or a new statute-barred charge, and no prejudice was identified. The amendment was therefore allowed under s 170 of the Industrial Relations Act 1996.

Jurisdiction
Australia
Judgment Date
25 June 2009
Procedural Posture
Occupational Health and Safety Prosecution Under the Occupational Health and Safety Act 2000 / Prosecution Application to Amend the Applications for Order Before the Matters Had Been Set Down for Hearing
Outcome
Application to amend the charges allowed.
Legal Topics
['amendment of Charges' 'factual Particulars and Legal Elements of an Offence' 'statutory Limitation Period' 'contraventions Arising Out of the Same Factual Circumstances' 'workplace Fall From Heights']
['occupational Health and Safety' 'industrial Relations' 'criminal Procedure'] ['amendment of Charges' 'factual Particulars and Legal Elements of an Offence' 'statutory Limitation Period' 'contraventions Arising Out of the Same Factual Circumstances' 'workplace Fall From Heights']

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Procedural Posture

Occupational Health and Safety Prosecution Under the Occupational Health and Safety Act 2000 / Prosecution Application to Amend the Applications for Order Before the Matters Had Been Set Down for Hearing

Legal Issues

  1. 1 ['Whether the proposed amendment to paragraph (d)(i) of each charge introduced a new legal element creating a new charge that was statute-barred under s 107 of the Occupational Health and Safety Act 2000.' 'Whether the proposed amendment was a factual particular of an existing single offence that could be allowed under s 170 of the Industrial Relations Act 1996.' 'Whether the alleged contraventions arose out of the same factual circumstances for the purposes of s 31(1) of the Occupational Health and Safety Act 2000.']

Ratio Decidendi

The amendment to paragraph (d)(i) arose out of the same factual circumstances as the existing allegations and, by reason of s 31(1) of the Occupational Health and Safety Act 2000, was a factual particular further explaining how the alleged failures under s 8(1) and s 8(2) occurred. It did not create a new legal element or a new statute-barred charge, and no prejudice was identified. The amendment was therefore allowed under s 170 of the Industrial Relations Act 1996.

Court Disposition

Application to amend the charges allowed.

Orders

  • ['The amendment sought to paragraph (d)(i) is allowed under s 170 of the Industrial Relations Act 1996.']