SafeWork NSW v AKA Civil Australia Pty Ltd [2019] NSWDC 257

SafeWork NSW v AKA Civil Australia Pty Ltd [2019] NSWDC 257

Leave to amend the Summons was granted because no plea had been entered, no evidence had been called, the amendment did not change the charge or statement of facts, and it clarified that the standard alleged was the statutory standard under s 19(2) of the Work Health and Safety Act 2011 (NSW), causing no injustice or prejudice. The defendant's Motion was dismissed because the prosecution was not confined to risk at the instant of collapse, the pleadings and particulars disclosed a case that the risk existed during the demolition operation, and it was sufficient to identify the class of persons as members of the public in the vicinity rather than naming individuals.

Jurisdiction
Australia
Judgment Date
14 June 2019
Procedural Posture
Criminal Prosecution for Alleged Breach of Work Health and Safety Duty / Defendant's Notice of Motion to Quash, Permanently Stay or Dismiss Proceedings; Prosecutor's Application for Leave to Amend the Summons
Outcome
Leave granted to amend the Summons; defendant's Motion dismissed; costs reserved for further hearing.
Legal Topics
['amendment of Summons' 'application to Quash Proceedings' 'permanent Stay for Abuse of Process' 'particularisation of Persons Exposed to Risk' 'risk of Death or Serious Injury From Demolition Work']
['criminal Law' 'work Health and Safety' 'criminal Procedure'] ['amendment of Summons' 'application to Quash Proceedings' 'permanent Stay for Abuse of Process' 'particularisation of Persons Exposed to Risk' 'risk of Death or Serious Injury From Demolition Work']

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Procedural Posture

Criminal Prosecution for Alleged Breach of Work Health and Safety Duty / Defendant's Notice of Motion to Quash, Permanently Stay or Dismiss Proceedings; Prosecutor's Application for Leave to Amend the Summons

Legal Issues

  1. 1 ['Whether leave should be granted to amend the Summons to align the pleaded particulars with the statutory qualification of what was reasonably practicable under s 19(2) of the Work Health and Safety Act 2011 (NSW).' 'Whether the Summons should be quashed because it allegedly imposed a higher standard than the Act required.' 'Whether the proceedings should be quashed, permanently stayed or dismissed because the Summons did not identify by name the other persons allegedly exposed to risk.' 'Whether the prosecution was confined to proving risk only at the moment the façade collapsed or could rely on risk during the demolition operation.']

Ratio Decidendi

Leave to amend the Summons was granted because no plea had been entered, no evidence had been called, the amendment did not change the charge or statement of facts, and it clarified that the standard alleged was the statutory standard under s 19(2) of the Work Health and Safety Act 2011 (NSW), causing no injustice or prejudice. The defendant's Motion was dismissed because the prosecution was not confined to risk at the instant of collapse, the pleadings and particulars disclosed a case that the risk existed during the demolition operation, and it was sufficient to identify the class of persons as members of the public in the vicinity rather than naming individuals.

Court Disposition

Leave granted to amend the Summons; defendant's Motion dismissed; costs reserved for further hearing.

Orders

  • ['Grant leave to the prosecutor to amend the Summons in accordance with MFI 5.' "Dismiss the defendant's Motion filed on 11 March 2019." 'I will hear the parties further on costs.']