SafeWork NSW v BSA Limited (No. 4) [2023] NSWDC 544

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v BSA Limited (No. 4) [2023] NSWDC 544 Hearing dates: On the papers Date of orders: 6 December 2023 Decision date: 06 December 2023 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Order that BSA Limited pay 85% of the prosecutor's costs. (2) The exhibits are returned. Catchwords: COSTS — work health and safety — prosecutor's costs — relevant principles — relevance of negotiations between parties concerning the plea Legislation Cited: Criminal Procedure Act 1986 (NSW), ss 257B, 257G Work Health and Safety Act 2011 (NSW) Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 SafeWork NSW v BSA Ltd (No. 2) [2023] NSWDC 73 SafeWork NSW v BSA Ltd (No. 3) [2023] NSWDC 417 Category: Costs Parties: SafeWork NSW (Prosecutor) BSA Limited (Defendant) Representation: Counsel: J Agius SC with B Docking A Moses SC with M Shume

Solicitors: Department of Customer Service (Prosecutor) Seyfarth Shaw (Defendant) File Number(s): 2020/351444

Judgment

Introduction 1. This judgment concerns the costs of a prosecution brought by SafeWork NSW (SafeWork) against the defendant BSA Limited (BSA). The parties filed written submissions and agreed that the costs issue should be determined on the papers. 2. Proceedings were commenced in this court by a Summons filed on 9 December 2020. The matter came before the court many times for directions hearings and interlocutory hearings. On 7 April 2022 the matter was listed for hearing, on a plea of not guilty, for four weeks commencing on 13 February 2023. 3. On 6 December 2022 BSA entered a plea of guilty on a limited basis. BSA admitted one pleaded risk but disputed the second pleaded risk. BSA admitted two reasonably practicable measures which it should have taken, but disputed the balance of the pleaded reasonably practicable measures. 4. After a Disputed Facts Hearing which occupied 13 days, spread over a four-week period, I found BSA guilty on 31 March 2023: SafeWork NSW v BSA Ltd (No. 2) [2023] NSWDC 73 (the primary judgment).