Jennifer Ann Nash v Resource Pacific Pty Limited (No 1) [2016] NSWIC 6

Industrial Court New South Wales

Medium Neutral Citation: Jennifer Ann Nash v Resource Pacific Pty Limited (No 1) [2016] NSWIC 6 Hearing dates: 30 and 31 March and 6 and 7 April 2016 Date of orders: 07 April 2016 Decision date: 24 June 2016 Before: Walton J; President Decision: The Court confirms its rulings as to the admissibility of evidence with respect to the Georgevits report, the Georgevits supplementary report, the McAree report and the McAree supplementary report and related rulings given on 30 and 31 March and 6 and 7 April 2016 for the reasons appearing in this judgment. Catchwords: OCCUPATIONAL HEALTH AND SAFETY – prosecution under s 8(2) and s 10(2) of Occupational Health and Safety Act 2000 – expert evidence – reasons for judgments on admissibility - objections to expert reports as evidence – prosecutor tendered supplementary reports on application and in chief – objection to receipt of supplementary reports - whether prejudice arose from lack of notice – whether fresh evidence – whether prosecutor's use of procedure adopted by court prejudicial – case management discretion in criminal proceedings – prevention of unfairness in proceedings – leave to file supplementary reports – partial receipt of supplementary reports for purpose of determining objections to primary reports – partial receipt of supplementary reports as evidence in chief – principles regarding admissibility of expert evidence –operation of ss 76, 78, 79, 135 and 137 of Evidence Act 1995 – reasons for determinations on admissibility of expert reports - specialised knowledge based on training, study or experience – generalist knowledge - whether opinions wholly or substantially based on specialised knowledge – whether reasoning, facts and assumptions on which opinions based provided – generalist knowledge - whether opinion admissible as lay opinion –– whether danger of prejudice outweighed probative value of evidence – whether opinions relevant to proceedings – whether opinion admissible as lay opinion. Legislation Cited: Clean Air Act 1961 Coal Mine Health and Safety Act 2002 Criminal Procedure Act 1986 Environmental Planning and Assessment Act 1979 Evidence Act 1995 Occupational Health and Safety Act 2000 Cases Cited: Australian Securities and Investments v Rich [2005] NSWCA 152; (2005) 218 ALR 764 Cadbury Schweppes v Darrel Lea [2007] FCAFC 70; (2007) 159 FCR 397 Dasreef v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Honeysett v The Queen [2014] HCA 29; (2014) 253 CLR 122 Keller v The Queen [2006] NSWCCA 204 Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114; (2013) 298 ALR 532 Makita Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 State Pollution Control Commission v Australian Iron (1992) 29 NSWLR 487 Sutherland Shire Council v Benedict Industries [2013] NSWLEC 121 Category: Procedural and other rulings Parties: Jennifer Ann Nash (Prosecutor) Resource Pacific Pty Limited (Defendant) Representation: J Agius SC with B Clarke and R J Rankin (Prosecutor) D Buchannan SC with M Shume (Defendant)