Inspector Regan v Southern Colliery Maintenance Pty Ltd (No 4) [2012] NSWIRComm 99

Inspector Regan v Southern Colliery Maintenance Pty Ltd (No 4) [2012] NSWIRComm 99

Leave to amend was refused because, as pleaded and on the evidence to date, the relevant risk to non-employees arose only when workers used the completed scaffold on 7 July 2006, not before; changing the charge to a period beginning 30 June 2006 on the fifth day of trial would require the defendant to meet a different charge and would cause injustice and unfairness, including by affecting agreed facts and potentially requiring witness recall and further subpoenas.

Jurisdiction
Australia
Judgment Date
05 September 2012
Procedural Posture
Occupational Health and Safety Prosecution Under S 8(2) of the Occupational Health and Safety Act 2000 / Interlocutory Notice of Motion by Prosecutor to Amend the Amended Application for Order on the Fifth Day of a Summary Trial
Outcome
Notice of motion dismissed; question of costs reserved.
Legal Topics
['amendment of Charge or Indictment' 'continuing Offence' 'exposure to Risk' 'unfairness and Injustice to Defendant' 'application for Order']
['occupational Health and Safety' 'criminal Procedure' 'industrial Relations'] ['amendment of Charge or Indictment' 'continuing Offence' 'exposure to Risk' 'unfairness and Injustice to Defendant' 'application for Order']

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Procedural Posture

Occupational Health and Safety Prosecution Under S 8(2) of the Occupational Health and Safety Act 2000 / Interlocutory Notice of Motion by Prosecutor to Amend the Amended Application for Order on the Fifth Day of a Summary Trial

Legal Issues

  1. 1 ['Whether leave should be granted to amend the charge date of 7 July 2006 to a charge period of 30 June 2006 up to and including 7 July 2006.' "Whether the alleged risk to non-employees' health or safety arose before 7 July 2006." 'Whether the late amendment would cause injustice or unfairness to the defendant.']

Ratio Decidendi

Leave to amend was refused because, as pleaded and on the evidence to date, the relevant risk to non-employees arose only when workers used the completed scaffold on 7 July 2006, not before; changing the charge to a period beginning 30 June 2006 on the fifth day of trial would require the defendant to meet a different charge and would cause injustice and unfairness, including by affecting agreed facts and potentially requiring witness recall and further subpoenas.

Court Disposition

Notice of motion dismissed; question of costs reserved.

Orders

  • ['The notice of motion is dismissed.' 'I reserve the question of costs.']