Inspector Nikolovski v Peter Bakhos and City Civil Pty Ltd [2011] NSWIRComm 20

Inspector Nikolovski v Peter Bakhos and City Civil Pty Ltd [2011] NSWIRComm 20

The original Applications for Order, read with the particulars, further particulars and the inspector's affidavit, sufficiently identified the risk of falling from height during demolition work and the measures said to be required, so the initiating processes were valid under Kirk. The proposed amendments did not constitute new charges but expanded and more specifically particularised the existing allegations concerning safe roof access, fall protection, information, instruction, training, supervision and employee experience. Procedural fairness supported placing those particulars in the charges by amendment, so the prosecutor's Notices of Motion were granted.

Jurisdiction
Australia
Judgment Date
14 March 2011
Procedural Posture
Occupational Health and Safety Prosecution Under S 8(1) of the Occupational Health and Safety Act 2000 / Interlocutory Applications: Prosecutor's Notices of Motion to Amend Applications for Order After Guilty Pleas and Defendants' Notices of Motion to Withdraw Pleas Were Held in Abeyance
Outcome
Prosecutor's Notices of Motion granted; Applications for Order amended; costs of the Notices of Motion to be costs in the substantive prosecution proceedings.
Legal Topics
['validity and Particularity of Charges' 'amendment of Applications for Order' 'working at Heights and Fall Risk' 'safe Systems of Work' 'costs of Interlocutory Motions']
['occupational Health and Safety' 'industrial Law' 'criminal Procedure'] ['validity and Particularity of Charges' 'amendment of Applications for Order' 'working at Heights and Fall Risk' 'safe Systems of Work' 'costs of Interlocutory Motions']

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Procedural Posture

Occupational Health and Safety Prosecution Under S 8(1) of the Occupational Health and Safety Act 2000 / Interlocutory Applications: Prosecutor's Notices of Motion to Amend Applications for Order After Guilty Pleas and Defendants' Notices of Motion to Withdraw Pleas Were Held in Abeyance

Legal Issues

  1. 1 ["Whether the original Applications for Order sufficiently identified the nature of the offences and the defendants' alleged acts or omissions in light of Kirk v The Industrial Relations Commission and ors (2010) 239 CLR 531." 'Whether the proposed Amended Applications for Order introduced a new charge or merely provided greater particularity of the existing charges.' 'Whether the Court should grant the prosecutor leave to amend the Applications for Order.' 'How costs of the Notices of Motion should be dealt with.']

Ratio Decidendi

The original Applications for Order, read with the particulars, further particulars and the inspector's affidavit, sufficiently identified the risk of falling from height during demolition work and the measures said to be required, so the initiating processes were valid under Kirk. The proposed amendments did not constitute new charges but expanded and more specifically particularised the existing allegations concerning safe roof access, fall protection, information, instruction, training, supervision and employee experience. Procedural fairness supported placing those particulars in the charges by amendment, so the prosecutor's Notices of Motion were granted.

Court Disposition

Prosecutor's Notices of Motion granted; Applications for Order amended; costs of the Notices of Motion to be costs in the substantive prosecution proceedings.

Orders

  • ["The prosecutor's Notice of Motion in matters IRC 1015 and 1016 of 2009 is granted in each case." "The original Application for Order in each case is amended in accordance with the proposed Amended Application for Order annexed to the Affidavit of Ms Ramya Kumari Panagoda sworn on 13 May 2010 in support of the...