A recent decision has created chaos for WorkCover in the District Court of New South Wales.
In this decision1 proceedings against Built (NSW) Proprietary Limited (Built), under the now repealedOccupational Health and Safety Act 2000 (NSW) (OHS Act), were dismissed on procedural grounds.
Built filed a Notice of Motion to quash the Application to Commence Proceedings and the Summons in the matter on the basis that:
  1. the proceedings were started by a person who was not authorised to do so; and
  2. the Summons did not allege an offence known to law.
Built’s success in this decision has significant ramifications for other matters commenced by WorkCover in the District Court that share the same procedural deficiencies, especially where WorkCover is precluded by statutory time limits from recommencing or changing proceedings.
Built sought an order quashing the Application on the basis that the it did not fulfil the procedural requirements of the OHS Act, which required the proceedings to be instituted:
  • with the written consent of a Minister of the Crown;
  • with the written consent of an officer prescribed by the regulations to the OHS Act;
  • by an inspector; or
  • by the secretary of a union whose members are concerned in the matter to which the proceedings relate.

Built also argued that the Summons was defective because it did not comply with the Criminal Procedure Act 1986 (NSW) (CP Act), which when read with the District Court Rules 1973 (NSW) (Rules), required the proceedings to be instituted by an inspector and the Summons and statement of facts to be signed by the inspector as the prosecutor.
The Court considered whether, in the context of safety prosecutions, an extended meaning of ‘prosecutor’ was permitted to include ‘an Australian legal practitioner representing the prosecutor’. Given the personal responsibility of inspectors prescribed by the OHS Act and the parliamentary intention of the CP Act and Rules, Curtis J held that the signature of the prosecutor was required to satisfy the relevant Rules. Due to this procedural deficiency, the proceedings were not brought in accordance with the OHS Act and were void.
The Court also considered the second part of Built’s application, which argued that the Summons did not allege an offence known to law.
The Summons charged that the defendant, ‘being an employer…failed by its acts and/or omissions…to ensure the health, safety and welfare at work of persons other than its employees…contrary to section 8(2)’ of the OHS Act.
Built argued that the charge did not disclose an offence punishable by law because:
  1. section 8(2) of the OHS Act did not simply require an employer to ensure the safety of persons other than its employees at work. Rather, section 8(2) required an employer to ‘ensure that people (other than employees of the employer)’ were ‘not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking, while they are at the employer’s place of work’; and
  2. the charge did not recite the necessary ingredient relating to risks ‘arising from the conduct of the employer’s undertaking’.
The Court found that there was a possibility that WorkCover had intended to charge the defendant pursuant to section 8(1) (which involved duties of employers in relation to ‘work’), rather than under section 8(2) (which involved duties of employers in relation to their ‘undertaking’), but had erredAfter considering the applicable provisions of the CP Act, the Court found that the charge was uncertain and ambiguous, and therefore defective, because it identified two possible offences.
Appeal by the Attorney-General of New South Wales
The decision of Curtis J is now the subject of an appeal by the Attorney-General of New South Wales in the Supreme Court – Court of Criminal Appeal. The appeal proceedings are listed for hearing on 28 May 2013.
In the interim, the safety prosecutions currently before the District Court that share the same procedural deficiencies as identified in the Built decision have been adjourned.
Implications for organisations
The Built decision reinforces the importance of strict compliance with procedural requirements in litigation and the need to consider any application and summons carefully.
Where the time limit for commencing proceedings has not yet expired, it is open to WorkCover to discontinue proceedings and recommence them in the correct form.
In all other affected proceedings, if the Built decision remains good law, we anticipate that defendants may bring a motion to have their proceedings struck out.
Organisations with prosecutions on foot in the District Court should seek advice about the ramifications of the Built decision on their case and should carefully monitor the status of the Built appeal.