SafeWork NSW v Western Sydney Local Health District [2023] NSWDC 491

SafeWork NSW v Western Sydney Local Health District [2023] NSWDC 491

The Court granted leave to file the Amended Summons because the draft addressed most of the defendant's concerns and no stay was pursued. Paragraph 8 did not impermissibly add an element to the s 33 offence; even if it introduced an irrelevant matter, it would not become an element, and it was properly understood as...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
15 November 2023
Procedural Posture
Criminal Prosecution for an Alleged Category 3 Offence Under the Work Health and Safety Act 2011 / Procedural Ruling on the Prosecutor's Application for Leave to File an Amended Summons and the Defendant's Notice of Motion Alleging the Pleaded Case Was Oppressive and Uncertain; No Plea Had Yet Been Entered
Outcome
Leave granted to the prosecutor to file an Amended Summons; the defendant's Notice of Motion dismissed.
Legal Topics
['pleading' 'particulars' 'amendment of Summons' 'sufficiency of Particulars' 'use of "and/or" in Pleadings' 'work Health and Safety Duties' 'psychosocial Hazards']
['criminal Law' 'work Health and Safety' 'criminal Procedure'] ['pleading' 'particulars' 'amendment of Summons' 'sufficiency of Particulars' 'use of "and/or" in Pleadings' 'work Health and Safety Duties' 'psychosocial Hazards']

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Procedural Posture

Criminal Prosecution for an Alleged Category 3 Offence Under the Work Health and Safety Act 2011 / Procedural Ruling on the Prosecutor's Application for Leave to File an Amended Summons and the Defendant's Notice of Motion Alleging the Pleaded Case Was Oppressive and Uncertain; No Plea Had Yet Been Entered

Legal Issues

  1. 1 ['Whether paragraph 8 of the draft Amended Summons introduced an assertion that the nurses were exposed to a risk of serious injury or death when that was not an element of the s 33 offence.' 'Whether the prosecutor should be required to elect between the alternatives in s 17 of the Work Health and Safety Act 2011, namely whether the risk could be eliminated or could only be minimised.' 'Whether the words "and/or" as they appeared in paragraph 9 of the draft Amended Summons were necessary.']

Ratio Decidendi

The Court granted leave to file the Amended Summons because the draft addressed most of the defendant's concerns and no stay was pursued. Paragraph 8 did not impermissibly add an element to the s 33 offence; even if it introduced an irrelevant matter, it would not become an element, and it was properly understood as alleging a generic risk of physical or psychological harm arising from the handling of grievances. The prosecutor was not required at this stage to elect between elimination and minimisation under s 17, although it should review whether the proceedings could be simplified by doing so. The repeated use of "and/or" in paragraph 9 was unnecessary, but in light of the defendant's...

Court Disposition

Leave granted to the prosecutor to file an Amended Summons; the defendant's Notice of Motion dismissed.

Orders

  • ['Grant leave to the prosecutor to file an Amended Summons in the form of the draft that was the subject of the argument on 2 November 2023, subject to any further amendment consistent with this judgment.' 'The prosecutor is to file the Amended Summons within 7 days of the date of publication of this judgment.' "The...