SafeWork NSW v Edstein Creative Pty Ltd (No. 2) [2023] NSWDC 180

SafeWork NSW v Edstein Creative Pty Ltd (No. 2) [2023] NSWDC 180

The stay was dissolved because the further particulars made clear that the prosecution case was limited to AB, that the alleged offence was a continuing failure throughout 1 January 2012 to 1 November 2018 at customer premises where AB worked with engineered stone, and that Edstein now knew the case it had to meet. Leave to amend the Summons was granted because the amendments rectified problems in the original Summons, aligned the pleading with the new particulars, were sought well before trial, and no undue prejudice was shown, subject to paragraph 14 being amended to refer to a worker, in particular AB, rather than workers generally.

Jurisdiction
Australia
Judgment Date
02 June 2023
Procedural Posture
Criminal Work Health and Safety Prosecution / Notice of Motion by Prosecutor to Dissolve Stay of Proceedings and for Leave to Amend Summons
Outcome
Notice of Motion granted; stay dissolved; leave granted to amend the Summons subject to modification; Amended Statement of Facts directed; costs in the cause; matter stood over.
Legal Topics
['duty of Persons Conducting a Business or Undertaking' 'particulars of Offence' 'stay of Proceedings' 'amendment of Summons' 'exposure to Respirable Crystalline Silica' 'risk of Serious Occupational Illness']
['criminal Law' 'criminal Procedure' 'work Health and Safety'] ['duty of Persons Conducting a Business or Undertaking' 'particulars of Offence' 'stay of Proceedings' 'amendment of Summons' 'exposure to Respirable Crystalline Silica' 'risk of Serious Occupational Illness']

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Procedural Posture

Criminal Work Health and Safety Prosecution / Notice of Motion by Prosecutor to Dissolve Stay of Proceedings and for Leave to Amend Summons

Legal Issues

  1. 1 ['Whether SafeWork NSW had provided sufficient particulars of when and where the offence was alleged to have been committed and the identity of each worker said to have been exposed to the pleaded risk.' 'Whether the stay ordered on 14 April 2022 should be dissolved.' 'Whether leave should be granted to amend the Summons in the proposed form, including whether the amendments would unfairly prejudice the defendant.' 'Whether the proposed Amended Summons should be clarified so that the prosecution case was limited to exposure of AB only.']

Ratio Decidendi

The stay was dissolved because the further particulars made clear that the prosecution case was limited to AB, that the alleged offence was a continuing failure throughout 1 January 2012 to 1 November 2018 at customer premises where AB worked with engineered stone, and that Edstein now knew the case it had to meet. Leave to amend the Summons was granted because the amendments rectified problems in the original Summons, aligned the pleading with the new particulars, were sought well before trial, and no undue prejudice was shown, subject to paragraph 14 being amended to refer to a worker, in particular AB, rather than workers generally.

Court Disposition

Notice of Motion granted; stay dissolved; leave granted to amend the Summons subject to modification; Amended Statement of Facts directed; costs in the cause; matter stood over.

Orders

  • ['Vacate Order 1 made on 14 April 2022, to the intent that the stay is dissolved.' 'Grant leave to the prosecutor to amend the Summons by filing and serving a document in the form of Tab C to Exhibit PX 1 subject to par 14 of the Amended Summons reading as follows: "As a result of the defendant\'s failures a worker,...