SafeWork NSW v Edstein Creative Pty Ltd (No. 2) [2023] NSWDC 180

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Edstein Creative Pty Ltd (No. 2) [2023] NSWDC 180 Hearing dates: 23 May 2023 Date of orders: 2 June 2023 Decision date: 02 June 2023 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Vacate Order 1 made on 14 April 2022, to the intent that the stay is dissolved. (2) Grant leave to the prosecutor to amend the Summons by filing and serving a document in the form of Tab C to Exhibit PX 1 subject to par 14 of the Amended Summons reading as follows: "As a result of the defendant's failures a worker, in particular [AB], was exposed to a risk of acquiring serious occupational illnesses." (3) Direct the prosecutor to file, with the Amended Summons, an Amended Statement of Facts. (4 Order that the costs of the Notice of Motion be costs in the cause. (5) Stand over to the Work Health and Safety list at 9.30am on 26 June 2023. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury

CRIMINAL PROCEDURE – application to dissolve stay of proceedings – whether particulars of offence are sufficient to enable defendant to know the case it has to meet – where offence alleged is one of a continuing nature over specified period of time – application to amend Summons – where proposed amendments bring Summons into line with new particulars Legislation Cited: Work Health and Safety Act 2011 (NSW), s 19 Cases Cited: Allianz Australia Insurance Ltd v Newcastle Formwork Constructions Pty Ltd [2007] NSWCA 144 SafeWork NSW v Edstein Creative Pty Ltd [2022] NSWDC 117 SafeWork NSW v Solveco Pty Ltd [2021] NSWDC 298 Category: Procedural rulings Parties: SafeWork NSW (Prosecutor) Edstein Creative Pty Ltd (Defendant) Representation: Counsel: I Taylor SC with C Magee (Prosecutor) B Hodgkinson SC with P Barry (Defendant)