SafeWork NSW v Edstein Creative Pty Ltd [2022] NSWDC 117

SafeWork NSW v Edstein Creative Pty Ltd [2022] NSWDC 117

The Summons was filed within the limitation period because there was no evidence that the offence alleged in the Summons came to the notice of the regulator before 24 June 2019. However, the prosecutor had not provided adequate particulars of the alleged offence: the particulars did not sufficiently identify where and when the relevant work occurred, what work and processes were used, or which workers apart from AB were alleged to have been exposed to the pleaded risk. The prosecution should therefore be stayed until proper particulars are provided, but not dismissed or permanently stayed.

Jurisdiction
Australia
Judgment Date
14 April 2022
Procedural Posture
Criminal Prosecution for Alleged Offence Under the Work Health and Safety Act 2011 (nsw) / Defendant's Notice of Motion Seeking Dismissal, Permanent Stay, or Stay Until Proper Particulars Are Provided
Outcome
Defendant's motion partly granted: dismissal and permanent stay refused, but the Summons stayed until proper particulars are provided; each party to pay its own costs.
Legal Topics
['work Health and Safety Duty of Persons Conducting a Business or Undertaking' 'risk of Serious Illness From Respirable Crystalline Silica' 'limitation Period for Prosecution' 'adequacy of Particulars' 'stay of Summons']
['criminal Law' 'criminal Procedure' 'work Health and Safety'] ['work Health and Safety Duty of Persons Conducting a Business or Undertaking' 'risk of Serious Illness From Respirable Crystalline Silica' 'limitation Period for Prosecution' 'adequacy of Particulars' 'stay of Summons']

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Procedural Posture

Criminal Prosecution for Alleged Offence Under the Work Health and Safety Act 2011 (nsw) / Defendant's Notice of Motion Seeking Dismissal, Permanent Stay, or Stay Until Proper Particulars Are Provided

Legal Issues

  1. 1 ['Whether the proceedings were brought outside the two-year limitation period in s 232(1)(a) of the Work Health and Safety Act 2011 (NSW).' 'Whether the prosecutor had provided adequate particulars of when and where the offence was alleged to have been committed and the identity of each worker allegedly exposed to the pleaded risk.' 'Whether the Summons should be dismissed, permanently stayed, or stayed until proper particulars are provided.' "What costs order should be made on the defendant's Notice of Motion."]

Ratio Decidendi

The Summons was filed within the limitation period because there was no evidence that the offence alleged in the Summons came to the notice of the regulator before 24 June 2019. However, the prosecutor had not provided adequate particulars of the alleged offence: the particulars did not sufficiently identify where and when the relevant work occurred, what work and processes were used, or which workers apart from AB were alleged to have been exposed to the pleaded risk. The prosecution should therefore be stayed until proper particulars are provided, but not dismissed or permanently stayed.

Court Disposition

Defendant's motion partly granted: dismissal and permanent stay refused, but the Summons stayed until proper particulars are provided; each party to pay its own costs.

Orders

  • ['Order that the Summons be stayed until such time as the prosecutor properly particularises the allegations going to when it is alleged that the offence was committed, where it is alleged that the offence was committed, and the identity of each worker said to have been exposed to the pleaded risk.' "Order each...