SafeWork NSW v Qantas Ground Services Pty Ltd [2022] NSWDC 540

SafeWork NSW v Qantas Ground Services Pty Ltd [2022] NSWDC 540

The motion was dismissed because the Directions Summonses and the Issues and Concerns Summonses were not identical: each pleaded a different prohibited reason and required proof of a fact the other did not. It was permissible for SafeWork to pursue the charges as alternatives, particularly after making clear that it would not seek convictions on all four summonses, and Qantas did not identify substantial prejudice warranting a stay or election.

Jurisdiction
Australia
Judgment Date
08 November 2022
Procedural Posture
Criminal Proceedings Alleging Discriminatory Conduct for a Prohibited Reason Contrary to S 104(1) of the Work Health and Safety Act 2011 (nsw) / Defendant's Notice of Motion Seeking a Stay Until the Prosecutor Elects Whether It Will Withdraw Two Summonses
Outcome
Notice of Motion dismissed; defendant ordered to pay the prosecutor's costs of the Notice of Motion.
Legal Topics
['stay of Proceedings' 'alternative Charges' 'discriminatory Conduct for a Prohibited Reason' 'dominant Reason' 'health and Safety Representative' 'proof of Discriminatory Conduct']
['criminal Procedure' 'work Health and Safety'] ['stay of Proceedings' 'alternative Charges' 'discriminatory Conduct for a Prohibited Reason' 'dominant Reason' 'health and Safety Representative' 'proof of Discriminatory Conduct']

Case Brief

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Procedural Posture

Criminal Proceedings Alleging Discriminatory Conduct for a Prohibited Reason Contrary to S 104(1) of the Work Health and Safety Act 2011 (nsw) / Defendant's Notice of Motion Seeking a Stay Until the Prosecutor Elects Whether It Will Withdraw Two Summonses

Legal Issues

  1. 1 ['Whether proceedings should be stayed until the prosecutor elects whether to proceed on the Directions Summonses or the Issues and Concerns Summonses.' 'Whether it is legally permissible to plead, in separate summonses concerning the same conduct, different prohibited reasons each alleged to be the dominant reason.' 'Whether the Directions Summonses and the Issues and Concerns Summonses have identical elements or each requires proof of a fact the other does not.' 'Whether Qantas identified substantial prejudice from the prosecutor pursuing the charges as alternatives.']

Ratio Decidendi

The motion was dismissed because the Directions Summonses and the Issues and Concerns Summonses were not identical: each pleaded a different prohibited reason and required proof of a fact the other did not. It was permissible for SafeWork to pursue the charges as alternatives, particularly after making clear that it would not seek convictions on all four summonses, and Qantas did not identify substantial prejudice warranting a stay or election.

Court Disposition

Notice of Motion dismissed; defendant ordered to pay the prosecutor's costs of the Notice of Motion.

Orders

  • ['Dismiss the Notice of Motion filed by the defendant on 14 October 2022.' "Order the defendant to pay the prosecutor's costs of the Notice of Motion."]