SafeWork NSW v JBS Australia Pty Ltd

Allegations in the Summons

1. The Summons filed on 11 February 2022 pleads that on 19 February 2020 at the Caroona Feedlot at Caroona in NSW, JBS had a health and safety duty under s 19(1) of the WHS Act to ensure, so far as is reasonably practicable, the health and safety of workers while the workers were at work in the business or undertaking.
2. Further, SafeWork pleaded that JBS failed to comply with that duty and the failure to comply exposed workers, in particular Belinda Fletcher, to a risk of death or serious injury contrary to s 32 of the WHS Act.
3. The particulars were set out in Annexure A to the Summons. SafeWork alleged that the work carried out at the feedlot involved unloading hay bales from trucks, moisture-testing hay bales and stacking hay bales. Two front end loaders were used to handle the hay bales. Ms Belinda Fletcher was employed as a Commodities Clerk.
4. SafeWork pleaded that on 19 February 2020 Ms Fletcher was moisture-testing hay bales. She was directed to undertake that work by the defendant's Livestock Supervisor. Front end loaders were operating in the vicinity of Ms Fletcher. As she was working, SafeWork alleges that two bales of hay, weighing approximately 670kg each, were dislodged from a stack and fell on Ms Fletcher. SafeWork alleges that Ms Fletcher was struck, crushed and trapped by the falling hay bales and suffered serious injuries.
5. The risk was pleaded in par 11 as follows: "The risk was the risk of a hay bale (or hay bales) falling and striking, crushing and/or trapping a worker whilst undertaking the task of moisture testing."
6. Paragraph 12 of Annexure A pleads particulars of the defendant's failure to comply with the duty under s 19(1) of the WHS Act as follows: "12. The defendant failed to ensure, so far as is reasonably practicable, the health and safety of workers, in particular Ms Fletcher, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate, or alternatively minimise, if it was not reasonably practicable to eliminate, the risk: a. Undertaking a risk assessment, or adequate risk assessment, on the tasks of unloading hay bales, moisture testing hay bales and stacking hay bales to identity the risks associated with the tasks, assess the risks and determine the control measures that most effectively eliminated or minimised the risks; b. Developing, implementing and enforcing safe work procedure for moisture testing which specified: i. The Mill Supervisor (or delegate) is to determine where the hay should be unloaded and tested before being stacked onto a pad; ii. Moisture testing is only to take place when all bales had been unloaded from the truck and no machinery is operating in the vicinity of the unloaded bales, in particular FELs; iii. Workers are not to undertake moisture testing at the face of a stack that is being constructed on the pad; iv. Workers must not be in the vicinity of the FEL while it is unloading or stacking hay; v. All bales are to be moisture tested prior to the FEL commencing to form the stack on the pad; vi. The moisture tester is to leave the area before the FEL commences forming the stack on the pad; vii. If access is required to the FEL operating area, pedestrians must get visual and/or verbal approval from the FEL operator before doing so. The FEL must cease operation while pedestrians are in the area and resume operations only after receiving confirmation that all pedestrians have left the area; viii. Appropriate Personal Protective Equipment is to be worn, including a high visibility shirt of vest; c. Developing, implementing and enforcing safe work procedure for stacking hay bales which specified; i. The Mill Supervisor (or delegate) is to determine where the hay should be unloaded and tested before being stacked onto a pad; ii. Prior to unloading the truck, an assessment is to be made of the condition of the bales in order to determine the maximum stack height. Stacks are to be kept to a limited height as directed by the relevant supervisor; iii. Workers must not be in the vicinity of the FEL while it is unloading or stacking hay; iv. If access is required to the FEL operating area, pedestrians must get visual and/or verbal approval from the FEL operator before doing so. The FEL must cease operation while pedestrians are in the area and resume operations only after receiving confirmation that all pedestrians have left the area; v. The FEL operator is to unload the bales and place them on the ground, away from the pad, in stacks to a maximum of three-high for moisture testing; vi. Once all the bales have been unloaded, the FEL operator is cease operations and grant access to the area to the person undertaking moisture testing; vii. Once the moisture testing has been completed and the tester has left the area, the FEL operator is to commence stacking the bales onto the pad; viii. Bales should be stacked in an offset manner to ensure the stack is secure; ix. Hay is to be stacked on firm level ground. If the bales are stacked on a slope, the stack is to commence from the bottom of the slope and is to be built towards the higher side of the slope; d. Providing information, training and instruction to workers on safe work procedures for moisture testing and stacking hay bales, such procedures specifying the matters set out above; e. Providing supervision, or adequate supervision, to workers undertaking the tasks of unloading hay trucks, moisture testing and hay stacking to ensure: i. Safe work procedures were followed for the tasks, such as the safe work procedures set out in paragraphs (b) and (c) above; and/or ii. Adequate separation was maintained between the person operating the FEL and person undertaking the moisture testing; and/or iii. Moisture testing and FEL operations were not being undertaken simultaneously; f. Appointing a spotter, who had communication with the FEL operator, to prevent persons from entering the FEL operating area."

The Prosecutor's Motion

1. The Notice of Motion filed by the prosecutor on 30 November 2022 sought the following orders: "1. Pursuant to sections 247I(1)(b) of the Criminal Procedure Act 1986, the defendant is to give the prosecutor notice of the defence response to the prosecutor's notice, as follows: (a) Notice as to whether the defendant proposes to dispute the admissibility of the proposed evidence set out in Table B of the notice of prosecution case and the basis for any objections; and (b) Notice as to whether the defendant proposes to dispute the admissibility of the proposed evidence set out in Table C of the notice of prosecution case and the basis for any objections. 2. Costs of the motion be costs in the cause."

Preliminary Disclosure under the Criminal Procedure Act

1. Part 5 of the CP Act deals with the summary jurisdiction of, inter alia, the District Court. Part 5 Division 2A deals with "case management provisions and other provisions to reduce delays in proceedings". Division 2A applies to these proceedings: s 247A(c). The purpose of Division 2A is set out in s 247B as follows: "247B Purpose (1) The purpose of this Division is to reduce delays in proceedings by - (a) requiring certain preliminary disclosures to be made by the prosecution and the defence before the proceedings are heard, and (b) enabling the court to undertake case management where suitable in those proceedings, whether on its own motion or on application by a party to the proceedings. (2) Case management measures that are available to the court under this Division include the ordering of preliminary hearings, preliminary conferences and further preliminary disclosure. The court has a discretion in determining which (if any) of those measures are suitable in the proceedings concerned."
2. Section 247E of the CP Act requires the prosecutor to give the defendant notice of the prosecution case, including notice of certain specified matters. Section 247F of the CP Act requires the defendant to give the prosecutor notice of the defence response, which includes certain specified matters. Section 247G of the CP Act provides for a court to hold a preliminary hearing in relation to a matter. Section 247H of the CP Act gives the court power to order the parties to attend a preliminary conference.
3. Section 247H(9) of the CP Act requires the parties to indicate in writing the areas of agreement and disagreement regarding the evidence to be admitted at the trial. Except with the leave of the court, a party may not object to the admission of any evidence at the hearing, where the preliminary conference form indicates that the parties have agreed that the evidence is not in dispute: s 247H(10).
4. Section 247I of the CP Act, upon which the prosecutor relies in the Notice of Motion, provides as follows: "247I Court may order preliminary disclosure in particular case (1) After proceedings have been commenced, the court may make any or all of the following orders, but only if the court is of the opinion that it would be in the interests of justice to do so - (a) order that the prosecutor is to give to the defendant notice in accordance with section 247J, (b) order that the defendant is to give to the prosecutor notice of the defence response to the prosecution's notice in accordance with section 247K, (c) order that the prosecution is to give to the defendant notice of the prosecution response to the defence response in accordance with section 247L. (2) The court may order preliminary disclosure under this section on the application of any party or on the court's own initiative. (3) The court may order preliminary disclosure by the defendant only if the court is satisfied that the defendant will be represented by an Australian legal practitioner. (4) The court may limit preliminary disclosure to any specified aspect of the proceedings. (5) Preliminary disclosure required by an order under this section is to be made in accordance with a timetable determined by the court."
5. By order 1 in the Notice of Motion the prosecutor seeks an order requiring the defendant to give notice of any dispute about the admissibility of proposed documentary evidence served in the prosecution case, and the basis for any such objections.
6. Section 247I(1) of the CP Act clearly confers a discretion upon the court to make an order, requiring the court to hold the opinion "that it would be in the interests of justice to do so". As Kirby P observed in Herron v The Attorney General for NSW (1987) 8 NSWLR 601 at 613, "there could hardly be a wider judicial remit" than the words "in the interests of justice".
7. Section 247K of the CP Act, which is referred to in s 247I(1)(b) of the CP Act, provides as follows: "247K Defence response - court-ordered preliminary disclosure For the purposes of section 247I (1) (b), the notice of the defence response is to contain the following - (a) the matters required to be included in a notice under section 247F, (b) a statement, in relation to each fact set out in the statement of facts provided by the prosecutor, as to whether the defendant considers the fact is an agreed fact (within the meaning of section 191 of the Evidence Act 1995) or the defendant disputes the fact, (c) a statement, in relation to each matter and circumstance set out in the statement of facts provided by the prosecutor, as to whether the defendant takes issue with the matter or circumstance as set out, (d) notice as to whether the defendant proposes to dispute the admissibility of any proposed evidence disclosed by the prosecutor and the basis for the objection, (e) if the prosecutor disclosed an intention to adduce expert evidence at the hearing of the proceedings, notice as to whether the defendant disputes any of the expert evidence and which evidence is disputed, (f) a copy of any report, relevant to the proceedings, that has been prepared by a person whom the defendant intends to call as an expert witness at the hearing of the proceedings, (g) if the prosecutor disclosed an intention to adduce evidence at the hearing of the proceedings that has been obtained by means of surveillance, notice as to whether the defendant proposes to require the prosecutor to call any witnesses to corroborate that evidence and, if so, which witnesses will be required, (h) notice as to whether the defendant proposes to raise any issue with respect to the continuity of custody of any proposed exhibit disclosed by the prosecutor, (i) if the prosecutor disclosed an intention to tender at the hearing of the proceedings any transcript, notice as to whether the defendant accepts the transcript as accurate and, if not, in what respect the transcript is disputed, (j) notice as to whether the defendant proposes to dispute the authenticity or accuracy of any proposed documentary evidence or other exhibit disclosed by the prosecutor, (k) notice of any significant issue the defendant proposes to raise regarding an application for an appearance order, severability of the charges or separate trials or sentencing proceedings for the charges, (l) notice of any consent the defendant proposes to give under section 184 of the Evidence Act 1995. Note - The defendant is not required to include in a notice anything that has already been provided or disclosed to the prosecutor (see section 247U (2))."
8. The prosecutor relies upon s 247K(d) of the CP Act and seeks an order that the defence response contain notice as to whether the defendant proposes to dispute the admissibility of proposed documentary evidence disclosed by the prosecutor, and the basis for any objection.

Evidence of Ms Houston

1. Ms Houston is a lawyer who acts for SafeWork in the proceedings. In her affidavit she says that on 23 March 2022 the prosecutor served on the defendant an electronic Brief of Evidence. On 17 October 2022 the prosecutor served a Notice of Prosecution Case. This attached three tables setting out information required under s 247E of the CP Act and District Court Criminal Practice Note 16 - Work Health and Safety Prosecutions. Table A set out a copy of the statement of each witness whose evidence the prosecutor proposed to adduce at the hearing.
2. Table B set out a copy of each document which the prosecutor proposed to tender at the hearing. Table B was set out under the following headings: 1. General. 2. Pre-Incident System Documents. 3. Investigation Documents and Statutory Notices Issued by the Prosecutor. 4. Guidance Material. 5. Defendant's Post-Incident System Documents. 6. Other.
3. Table C identified certain particulars of the charge, and in the case of some particulars, identified which questions and answers, provided by the defendant pursuant to notices issued under s 155 of the WHS Act, the prosecutor proposed to tender. It is noted that that the particular portions of the notices listed in Table C, are parts of notices listed in their entirety in Table B.
4. The Notice of Defence response did not deal with objections to the material in Table B or Table C. There was correspondence from Ms Houston asking for the defence to indicate its objections, but the solicitor for the defendant declined to provide a response concerning objections and the basis for objections.

Other Evidence for Safework

1. After provision of the SafeWork written opening (PX 2), the solicitor for JBS wrote a letter dated 3 March 2023 (PX 3), indicating that JBS maintained its opposition to notifying the prosecutor as to whether it would object to any of the prosecutor's proposed documentary evidence.

Submissions for the Prosecutor

1. The prosecutor submitted (MFI 1) that it is in the interests of justice that the court make an order requiring the defendant to give notice as to whether it proposes to dispute the admissibility of the proposed evidence in Tables B and C, and the basis for any objections. The prosecutor pointed to the purpose of Division 2A set out in s 247B of the CP Act, being to reduce delays. The prosecutor submitted that the provisions of Division 2A provide an opportunity to prevent unnecessary costs and to allow the parties and the court to focus on the issues that are genuinely in dispute. The prosecutor submitted that Division 2A abrogates a defendant's right to silence to a substantial extent: Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121 at [6].
2. In oral submissions senior counsel for SafeWork submitted that Judge Scotting on 16 December 2022 had ordered JBS to indicate its position in relation to Table B, but the letter from the solicitor for JBS indicated that "the defendant has decided that it's not going to follow the order of his Honour" (Tcpt 4/35). Senior counsel for SafeWork submitted that JBS now had a written statement of the prosecutor's proposed opening, so "there is no practical impediment to the defendant complying with his Honour's order in relation to Table C" (Tcpt 5/5). Senior counsel for SafeWork submitted that the question was one of "expedient dealing with issues that would otherwise arise during the course of a trial, which can be dealt with before the trial commences, which will save time and make for a speedier and more effective trial" (Tcpt 5/40).

Submissions for the Defendant

1. The defendant acknowledged in its written submissions (MFI 2) that the powers under Division 2A are aimed at reducing delays in proceedings. The defendant pointed to the Agreement in Principle Speech to the Criminal Procedure Amendment (Summary Proceedings Case Management) Bill 2011 (NSW). The Attorney General said: "The improvements in the efficiency of the court system should not come at the expense of unfairness to defendants. The extent to which this bill impacts on defendants is limited in several ways. First, the pre-hearing disclosure provisions are not designed to be applied in every case. They are designed so that the courts can employ them where appropriate. A court may consider these provisions appropriate, for example, in the more complex cases, or cases that could lead to a lengthy hearing."
2. The defendant submitted that, given that Division 2A constitutes a substantial abridgment of a defendant's right to silence, it is important for the court to consider the specific features of the case that justify an intrusion upon a fundamental principle of the accusatorial system of justice. The defendant submitted that in exercising its discretion, considerations of a general character that are of universal application to all criminal trials involving an offence under the WHS Act, should not be taken into account.
3. The defendant submitted that the prosecutor had not identified why it is in the interests of justice to order preliminary disclosure by JBS, having regard to the lack of evidence about the nature of the case, the complexity of the case, the length of the case or whether any witnesses would be put to unnecessary inconvenience. The defendant submitted that the court was simply left "to surmise" the matters, facts and necessities about this case that would make it in the interests of justice for JBS to be required to assist the prosecutor to prove its case.
4. Finally, the defendant submitted that the prosecutor had not explained the purpose of the tender of each of the documents listed in Table B and so it was unfair, and not in the interests of justice, to require JBS to indicate its position about the tender of the documents without the prosecutor identifying the specific grounds on which the evidence is being tendered.
5. In oral submissions senior counsel for JBS pointed out that there was no evidence led by the prosecutor to address the key issues on this application, being whether the making of an order for preliminary disclosure would be "in the interests of justice". Senior counsel for JBS disagreed with the submission made by SafeWork that JBS had been in breach of a direction made by Judge Scotting (Tcpt 7/15). Senior counsel for JBS submitted that the purpose of the exercise of the discretion is to be found in s 247B, so that Division 2A is aimed at reducing delays in proceedings (Tcpt 8/20). Again, it was pointed out that there was no evidence in the affidavit of Ms Houston that if concessions were not made by the defendant, the prosecutor would need to call witnesses to establish a particular point (Tcpt 9/15). Senior counsel for JBS submitted that the application by the prosecution proceeded on the basis that it was simply orthodox to seek and make such orders. However, there was no evidence that the provision of objections would "radically dispose of hearing time in this matter" (Tcpt 9/48).
6. Senior counsel for JBS submitted that the making of a preliminary disclosure order was an intrusion upon the fundamental principle of the accusatorial system of justice but there was no evidentiary basis to enable the court to come to the view that there was justification for making such an order (Tcpt 10/50-11/5). Senior counsel for JBS pointed out that even though a written opening had now been provided, there was no indication how the documents listed in Table B were to be deployed at the hearing. Further, there was no evidence that, absent an indication concerning objections to documentary evidence, the prosecutor and the court would incur unnecessary costs (Tcpt 11/15). Senior counsel for JBS submitted that it was an error to take into account in exercising the discretion, considerations of a general nature, that are of universal application to all criminal trials (Tcpt 11/25).
7. Finally, senior counsel for JBS submitted that if the court was against him in relation to the application made by the prosecutor, that the appropriate order would be simply an order that JBS indicate whether or not it objected to any of the documents in Table B, without setting out the basis of its objection.

Submissions in Reply for the Prosecutor

1. In reply, the prosecutor submitted (MFI 3) that the "companion rule" does not apply, as the defendant is a corporation and does not have a privilege against self-incrimination. The prosecutor submitted, quite directly, that the evidence provided by JBS can be used to assist the prosecutor to make its case.
2. The prosecutor submitted that the defendant would not suffer any prejudice if the proposed orders were made, because the defendant would retain its right to object to the admissibility of documents.
3. The prosecutor disputed the defendant's submission that it would be unfair for the defendant to indicate its position on the tender without notice being provided by the prosecutor of the basis for the tender of each document. The prosecutor submitted that it had complied with its obligations under s 247E of the CP Act and there was no obligation to go further and set out the purpose of the tender of each document. In its submissions in reply, the prosecutor did indicate the relevance of the following categories of documents: 1. The wage records were to prove that the defendant's workers were workers within the meaning of s 7 of the WHS Act. 2. The pre-incident system documents would be tendered to establish the defendant's systems of work for stacking and moisture-testing hay bales. 3. The guidance material can be used to establish what information was available to the defendant in relation to management of the risk identified in par 11 of the Summons. 4. The post-incident system documents were admissible as evidence of whether the steps particularised in the Summons are reasonably practicable: Poletti Corporation Pty Ltd v SafeWork NSW [2020] NSWCCA 243 at [9] and [35].
4. The prosecutor also submitted that most of the documents proposed to be tendered were the defendant's own documents, which had been produced to the prosecutor under statutory notices. It was difficult, submitted the prosecutor, to understand why any injustice would flow from requiring the defendant to indicate whether it objects to the admissibility of its own business records.
5. In relation to the complexity of the case, the prosecutor noted that it involved 13 witnesses and was listed for a hearing of 3 weeks. It was submitted that the hearing would be reduced if there were fewer arguments about the admissibility of document evidence. The absence of indication by the defendant in relation to the admissibility of documents would impact the requirement to call witnesses. It was also submitted that the prosecutor's time and costs would be wasted by preparing for arguments about the admissibility of documents if there was no genuine dispute in relation to some of those documents.

Consideration

1. I reject the submission for SafeWork that JBS failed to comply with the order made by Judge Scotting on 16 December 2022. His Honour did not order JBS to provide a response to Table B after receiving a written opening by the prosecutor. His Honour simply ordered that JBS should indicate its attitude to the application of the prosecutor, in the light of consideration of the written opening. It did that, although it did not change its position.
2. In the Agreement in Principle Speech, the Attorney General said of Division 2A: "Used properly, the provisions of this Bill provide an opportunity to reduce hardship to parties and to witnesses, to prevent unnecessary costs and to allow parties and the court to spend their time and money on what really matters - that is, on those issues that are genuinely in dispute."
3. The court should have regard to the interests of efficiency, including not using limited judicial and personal resources, so that preliminary matters are considered which reduce the issues in dispute: Environment Protection Authority v Eastern Creek Operations Pty Ltd (No. 2) [2021] NSWLEC 39 at [31].
4. I accept the submission of JBS that the prosecutor has provided no evidence to show that, even if there was an indication of the objections to the documentary evidence and the basis for those objections, that would necessarily save costs and time at the hearing. There are of course costs incurred by both sides if objections have to be prepared and considered prior to the trial. Further, experience shows that many objections, which are initially taken, fall away once a witness gives evidence or a document is tendered. To take a theoretical example, a defendant might object to certain photographs of an incident scene. However, when the maker of the photographs is called as a witness, and they are tendered through that witness, there is usually no objection taken to the photographs going into evidence.
5. Those objections which are still maintained at the trial can usually be dealt with fairly expeditiously. It is the bread and butter of experienced counsel to deal with objections on the run.
6. Further, the simple provision of a list of objections, together with a one or two word indication of the basis for the objection, often does not save court time or assist the trial judge to give a ruling. Both the court and the opposition party are usually better off hearing an objection developed orally rather than telegraphed by one or two words in a document. It is not uncommon for a tender to be withdrawn, or deferred, when an objection is taken orally and reasons are given orally.
7. The purpose of Division 2A of the CP Act is to reduce delays in proceedings. With that objective in mind, consideration must be given to how the interests of justice are served by making an order against the defendant under ss 247I and 247K of the CP Act. There is no evidence provided by the prosecutor on this motion to show that the provision of objections would reduce the length of the proceedings.
8. It would be an error for this court to operate on the assumption that the provision of objections necessarily reduces delay. Even if that is right, a matter which I doubt (as discussed above), that would be a general feature applicable to all criminal trials and not just these proceedings. I accept the submission of JBS that it would be an error to take into account matters of general application rather than matters specific to a particular case: Pambula District Hospital v Herriman (1988) 14 NSWLR 387 at p 402D-403A and p 413D-E.

Conclusion and Orders

1. Taking into account the object of Division 2A, which is to reduce delays, I am not of the view that it would be in the interests of justice to order the defendant to give notice of its objections to the admissibility of documentary evidence listed by the prosecutor, and the basis for such objections.
2. The orders of the court are: 1. Dismiss the prosecutor's Notice of Motion filed on 30 November 2022. 2. Order the prosecutor to pay the defendant's costs of that Notice of Motion.

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. Decision last updated: 26 April 2023