Background

The District Court’s decision in Built held that a summons received from WorkCover should be quashed, because the document was signed by a solicitor instead of an inspector. This had wide spread implications for all prosecutions initiated in this manner.

The District Court rejected the argument in Empire Waste that the District Court didn't have jurisdiction to deal with its alleged breach of the repealed Occupational Health and Safety Act 2000 (NSW) (OHS Act).

Both decisions were subsequently appealed.

WHS Amendment Act

Whilst waiting for the appeals in the Built and Empire Waste decisions to be handed down, the New South Wales parliament passed retrospective legislation in the form of theWork Health and Safety Amendment Act 2013 (NSW) (WHS Amendment Act) to overcome the issues raised in the Built and Empire Waste cases.

The WHS Amendment Act clarified that the District Court did have jurisdiction to hear prosecutions for alleged breached of the repealed OHS Act and that proceedings instituted by a solicitor were valid.

Empire Waste Appeal

The appeal in Empire Waste Pty Ltd v District Court of New South Wales [2013] NSWCA 394 was subsequently dismissed and, in any event, the WHS Amendment Act has clarified that the District Court has jurisdiction to hear prosecutions for offences under the repealed OHS Act.

Built Appeal

WorkCover’s appeal in Attorney General of New South Wales v Built NSW Pty Ltd [2013] NSWCCA 299 was also subsequently dismissed.

Chief Justice Bathurst and Justices Beazley and Hoeben in the Court of Criminal Appeal found WorkCover NSW proceedings against Built (NSW) Pty Ltd were instituted by a solicitor (instead of an inspector, as required), and didn't disclose offences that were "known to law".

In reaching the decision, the Court found that an inspector was required at a minimum, to turn his or her mind to the particular offence in question and direct that charges for a particular offence be laid rather than a solicitor simply laying the charges.

In anticipation of a successful appeal, the WHS Amendment Act sought to cure the procedural issue by allowing a solicitor to sign a summons on behalf of an inspector.  Despite this, it is not clear if the requirement for an inspector to ‘turn their mind’ is satisfied.