SafeWork NSW v BSA Limited [2021] NSWDC 710

SafeWork NSW v BSA Limited [2021] NSWDC 710

Leave to amend was granted because the prosecutor gave a satisfactory explanation for the relatively short delay, the GPO power point tester issue had already been raised in the Statement of Facts and served material, the proposed amendment made the prosecution case clear, the proceeding was not near trial, the defendant had not committed to its case, and there was no evidence or inference of unfair prejudice to the defendant's fair trial rights. The prosecutor was ordered to pay indemnity costs thrown away by the vacation of the 25 November 2021 hearing because it filed the amendment motion without appropriate notice and assumed it would displace the defendant's listed motion, but each...

Jurisdiction
Australia
Judgment Date
23 December 2021
Procedural Posture
Criminal Prosecution Alleging Breach of Work Health and Safety Duty / Prosecutor's Notice of Motion for Leave to Amend Annexure a to the Summons Before Trial
Outcome
Prosecutor granted leave to amend the Summons; prosecutor ordered to pay defendant's thrown-away costs on an indemnity basis; each party to bear its own costs of the amendment motion.
Legal Topics
['application to Amend Summons' 'unfair Prejudice' 'fair Trial' 'stage of Proceedings' 'costs']
['criminal Procedure' 'work Health and Safety'] ['application to Amend Summons' 'unfair Prejudice' 'fair Trial' 'stage of Proceedings' 'costs']

Case Brief

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Procedural Posture

Criminal Prosecution Alleging Breach of Work Health and Safety Duty / Prosecutor's Notice of Motion for Leave to Amend Annexure a to the Summons Before Trial

Legal Issues

  1. 1 ['Whether leave should be granted to the prosecutor to amend particulars 9(g) and 9(h) of Annexure A to the Summons.' 'Whether the prosecutor gave a satisfactory explanation for delay in seeking the amendment.' "Whether the proposed amendment would cause unfair prejudice to the defendant's right to a fair trial." "What costs orders should be made in relation to the vacated hearing on 25 November 2021 and the prosecutor's notice of motion."]

Ratio Decidendi

Leave to amend was granted because the prosecutor gave a satisfactory explanation for the relatively short delay, the GPO power point tester issue had already been raised in the Statement of Facts and served material, the proposed amendment made the prosecution case clear, the proceeding was not near trial, the defendant had not committed to its case, and there was no evidence or inference of unfair prejudice to the defendant's fair trial rights. The prosecutor was ordered to pay indemnity costs thrown away by the vacation of the 25 November 2021 hearing because it filed the amendment motion without appropriate notice and assumed it would displace the defendant's listed motion, but each...

Court Disposition

Prosecutor granted leave to amend the Summons; prosecutor ordered to pay defendant's thrown-away costs on an indemnity basis; each party to bear its own costs of the amendment motion.

Orders

  • ['Grant leave to the prosecutor to amend Annexure A to the Summons filed on 9 December 2020 in respect of particulars 9(g) and 9(h) in the terms of Attachment A to the Notice of Motion filed on 19 November 2021.' "Order the prosecutor to pay the defendant's costs thrown away by reason of vacation of the hearing on...