A recent decision of Curtis J in Inspector Walsh v Built (NSW) Proprietary Limited (Built decision) has created chaos for WorkCover in the District Court of New South Wales. In the Built decision, Curtis J dismissed the proceedings against Built (NSW) Proprietary Limited(Built) under the now repealed Occupational Health and Safety Act 2000 (NSW) (OHS Act) on procedural grounds.

Built filed a Notice of Motion seeking an order to quash the Application to Commence Proceedings (Application) and the Summons in the matter on the basis that:

  1. the proceedings were instituted by a person who was not authorised to do so under the OHS Act (ie by an employed solicitor of WorkCover rather than an inspector); and
  2. the Summons did not allege an offence known to law.

Built’s success in this decision has significant ramifications for other matters commenced by WorkCover in the District Court which share the same procedural deficiencies, particularly in relation to matters where WorkCover is precluded from recommencing proceedings because the statutory time limit for doing so has passed.

Application

The Application identified the ‘prosecutor’ as ‘Inspector Walsh’, however, it was signed by an employed solicitor of WorkCover in the solicitor’s capacity as the ‘solicitor representing the prosecutor’. The accompanying statement of facts was similarly not signed by the prosecutor, but was signed by the solicitor above the words ‘solicitor representing the prosecutor applying for an order under section 246 of the Criminal Procedure Act 1986’.

Built sought an order quashing the Application on the basis that the Application did not fulfil the procedural requirements of the OHS Act, which required the proceedings to be instituted:

  • with the written consent of a Minister of the Crown;
  • with the written consent of an officer prescribed by the regulations to the OHS Act;
  • by an inspector; or
  • by the secretary of a union whose members are concerned in the matter to which the proceedings relate.

Built also argued that the Summons was defective because it did not comply with the Criminal Procedure Act 1986 (NSW) (CP Act) which, in this instance, when read with the District Court Rules 1973 (NSW) (Rules), required the proceedings to be instituted by an inspector and the Summons and statement of facts to be signed by the inspector as the prosecutor.

The Court considered whether, in the context of safety prosecutions, an extended meaning of ‘prosecutor’ was permitted to include ‘an Australian legal practitioner representing the prosecutor’. When considering this issue, Curtis J had regard to the other powers conferred upon inspectors under the OHS Act and the unique empowerment of inspectors to administer the OHS Act and to determine if and when charges should be laid. Given the personal responsibility of inspectors prescribed by the OHS Act and the parliamentary intention of the CP Act and Rules, Curtis J held that the signature of the prosecutor was required to satisfy the relevant Rules. Due to this procedural deficiency, Curtis J found that the proceedings were not brought in accordance with the OHS Act and were void.

Summons

Even though the above finding made it unnecessary to do so, Curtis J considered the second part of Built’s application, which argued that the Summons did not allege an offence known to law.

The Summons charged that the defendant, ‘Being an employer…failed by its acts and/or omissions…to ensure the health, safety and welfare at work of persons other than its employees…contrary to section 8(2)’ of the OHS Act.

Built argued that the charge did not disclose an offence punishable by law because:

  1. section 8(2) of the OHS Act did not simply require an employer to ensure the safety of persons other than its employees at work. Rather, section 8(2) required an employer to ‘ensure that people (other than employees of the employer)’ were ‘not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking, while they are at the employer’s place of work’; and
  2. the charge did not recite the necessary ingredient relating to risks ‘arising from the conduct of the employer’s undertaking’.

The Court found that there was a possibility that WorkCover had intended to charge the defendant pursuant to section 8(1) (which involved duties of employers in relation to ‘work’),rather than under section 8(2) (which involved duties of employers in relation to their ‘undertaking’), but had erred. After considering the applicable provisions of the CP Act, Curtis J found that the charge was uncertain and ambiguous, and therefore defective, because it identified two possible offences.

Curtis J noted that it may be possible to cure the defect by amendment such that the jurisdiction of the Court could be engaged to deal with the matter. However, as a finding had already been made that the proceedings were void, Curtis J did not express an opinion as to whether the Court should make an order for amendment (in the event WorkCover applied for such an order).

Appeal by the Attorney-General of New South Wales

The decision of Curtis J is now the subject of an appeal by the Attorney-General of New South Wales in the Supreme Court – Court of Criminal Appeal. The appeal proceedings are listed for hearing on 28 May 2013.

In the interim, the safety prosecutions currently before the District Court which share the same procedural deficiencies have been adjourned.

The case illustrates the importance of strict compliance with procedural requirements in litigation.

Where the time limit for commencing proceedings has not yet expired, it is open to WorkCover to discontinue proceedings and recommence them in the correct form. However, where the time limit has expired, if the Built decision remains good law following the Attorney-General’s appeal, it would be open to defendants to bring a motion to have their proceedings struck out where they do not comply with the identified procedural requirements.

Organisations with prosecutions on foot in the District Court should seek advice about the ramifications of the Built decision on their case and should carefully monitor the status of the Built appeal.