Industrial Court of New South Wales CITATION: Inspector Barnabas Ching v Simpson Design Associates Pty Ltd. Prosecution under s 11(1)(a) of the Occupational Health and Safety Act 2000 [2009] NSWIRComm 75 PROSECUTOR: Inspector Barnabas Ching PARTIES: DEFENDANT: Simpson Design Associates Pty Ltd FILE NUMBER(S): IRC 404 of 2008 CORAM: Haylen J CATCHWORDS: Occupational Health and Safety Act 2000 - s 11(1)(a) - workplace incident involving number of entities - prosecutions commenced - prosecutor proposes joint trial - design defendant seeks separate trial - consideration of relevant principles - additional cost the major prejudice likely to be suffered by design defendant - motion for separate trial refused - costs reserved LEGISLATION CITED: Occupational Health and Safety Act 2000 R v Dellapatrona (1993) 31 NSWLR 123 Inspector Lane v the Australian Winch and Haulage Co Pty Ltd (2000) 102 IR at 40 CASES CITED: R v Fernando (1999) NSWCCA 66 R v Grondkowski (1946) 1 KB 369 Rech v F M Hide Pty Ltd (1998) 83 IR 293 between pages 294 and 295 HEARING DATES: 15 May 2009 EXTEMPORE JUDGMENT DATE: 15 May 2009 RESPONDENT/PROSECUTOR on Notice of Motion Mr S Crawshaw SC with Ms P McDonald of counsel SOLICITORS: WorkCover Authority Legal Group (Ms E Haigh) LEGAL REPRESENTATIVES: APPLICANT/DEFENDANT on Notice of Motion Mr I Neil SC with P Moorhouse of counsel SOLICITORS: Kennedys (Ms P Taylor) JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J 15 May 2009 Matter No IRC 404 of 2008 INSPECTOR BARNABAS CHING v SIMPSON DESIGN ASSOCIATES PTY LTD Prosecution under s 11(1)(a) of the Occupational Health and Safety Act 2000 EX TEMPORE JUDGMENT [2009] NSWIRComm75 1 The Court has before it a notice of motion by Simpson Design Associates Pty Ltd seeking a separate trial in charges brought under the Occupational Health and Safety Act 2000. At present the Court has some three weeks set aside to hear charges initially brought against a number of entities but with recent events likely at least to concern one other company as well as Simpson Design. 2 There was no issue about the appropriate principles to apply on an application for a separate trial, that is, the relief sought in the notice of motion. Inspector Lane v the Australian Winch and Haulage Co Pty Ltd (2000) 102 IR at 40 is Full Bench authority for the broad proposition that normally where there is one incident and a number of parties are involved, cases brought under the Occupational Health and Safety Act should be heard together. There is a reference in paragraph 46 to the judgement of Hungerford J in Rech v F M Hide Pty Ltd (1998) 83 IR 293 between pages 294 and 295 where his Honour followed R v Dellapatrona (1993) 31 NSWLR 123 in the Court of Criminal Appeal to this effect: There remains a balance to be struck between the public interest and the efficient dispatch of criminal trials and any prejudice which may be caused to the accused. It is desirable to have all of those charged in relation to a particular crime tried at the same time otherwise positive injustice would thereby be caused. 3 The Full Bench noted that there was a recent canvassing of the relevant authorities on separate trials in R v Fernando (1999) NSWCCA 66. As is to be expected, Fernando covers a wide variety of cases that would arise in the broad criminal jurisdiction but the one common thread is the same as appears from Dellapatrona, that is, identification of prejudice to the party seeking a separate trial and the interests of justice. 4 In the cases considered there was one particular reference to the case of R v Grondkowski (1946) 1 KB 369 where it was said that there were two matters primarily to be considered, that is, the interests of justice and, secondly, the interests of the prisoner, here the interests of the defendant. Dellapatrona, of course, is also referred to, and at paragraph 212 the Court of Criminal Appeal says this: Accordingly, in determining whether a separate trial should be granted, the Court must carry out a balancing process between the community interests described by Herron J in Bevan and Toohey J in Webb v Hay and the question of undue prejudice to an accused as described in the authorities to which we have referred. Bearing in mind the different jurisdiction that is exercised by the Industrial Court, those matters nevertheless have relevance for the way in which the discretion to order a separate trial should be exercised. 5 Here the case for the defendant on the notice of motion is its concern about being involved in proceedings that will canvass evidence that they believe will not be relevant to their case thus incurring unjustified expenses and those expenses have been set out in affidavits. 6 There has been much correspondence passing between the defendant and the prosecutor. The prosecutor has considered what has been put and has rejected the application made in that correspondence for a separate trial. In both sets of correspondence there are assertions as to what will be necessary and what will be irrelevant. The Court at this point is simply unable to make a proper assessment of the strengths of those arguments and it will be necessary to hear the case before those matters, if they do arise ultimately on the hearing, are able to be ruled upon. 7 As I have indicated, the prosecutor has considered the representations of the defendant. It asserts that there will be a large number of common witnesses, contrary to what has been put by the defendant. The prosecutor has drawn attention to the duties of the prosecutor regarding the evidence it calls in a trial. The prosecutor has made an assessment of the way in which the trial should proceed. It therefore falls to the defendant to make out a case in the interests of justice and by reference to prejudice as to why there should be a separate trial. 8 As I have already indicated, that revolves around the question of costs. It seems to me that in the circumstances with which the Court is now faced and where it cannot be determined whether the fears of the defendant are likely to come to fruition or not, the most appropriate course is to concentrate on the question of costs. It appears to the Court that this is the situation. If the defendant successfully resists the prosecution, it will seek and in the usual course will get its costs, including costs for the time when evidence irrelevant to its case occupied the Court. If it fails but it is able to show, especially in the light of this notice of motion where it sought a separate trial, that there was such a significance of evidence not relevant to its case that requires that situation to be reflected in the costs order , the Court will hear and deal with that argument. To the Court that seems to be the most appropriate answer in difficult circumstances to the concerns raised by the defendant. That is the course that the Court proposes to take. That means that the motion for a separate trial is dismissed. 9 It is appropriate, considering the legislative restrictions on the Court in any event, that the costs of this motion be reserved. They will be dealt with when the Court deals with the general question of costs at the conclusion of the proceedings. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.