SafeWork NSW v Secretary of the Ministry of Health on behalf of the Ambulance Service of NSW

ISSUE FOR DETERMINATION

1. With regard to the motion to amend the summonses, the Court has no power to grant leave to amend a summons to replace one defendant with another. The power to amend is confined to a power to correct the name of the same defendant.
2. The question for the Court is whether, on the evidence, the prosecutor has established that he is seeking to correct the name of the same defendant named in the summonses or, alternatively, is in truth, seeking to substitute one defendant for another.
3. Neither the Health Secretary nor the Crown in the right of New South Wales in respect of the Ambulance Service of NSW oppose the orders being made. However, I accept that the attitude of the defendant is not determinative.

The Health Secretary

1. Section 50D of the Constitution Act 1902 (NSW) gives the Governor the power to create Public Service agencies. The Ministry of Health falls within the definition of a department pursuant to s 3 and Sch 1 of the Government Sector Employment Act 2013 (NSW). Section 23 of that Act also creates a head of each Department which is the Secretary (previously known as the Director-General) of the Department. The general responsibility of the Secretary is described in s 25 of the same Act.
2. The Health Secretary also holds further specified functions under other statutes, including s 8 of the Health Administration Act 1982 (NSW) ('HA Act') and Part 1 of Chapter 10 of the Health Services Act 1997 (NSW) ('HS Act').

The Ambulance Service

1. The provision of ambulance services is provided for in Chapter 5A of the HS Act.
2. The 'Ambulance Service of NSW' is defined in s 67A(1) of the HS Act as comprising those staff of the NSW Health Service who are employed primarily in connection with the provision of ambulance services under this Chapter.
3. It is not a body corporate, or a 'person' as understood in law.
4. Pursuant to s 67B of the HS Act, the Health Secretary, on behalf of the Crown, is to provide a number of enumerated ambulance services, and may charge a fee for such services (s 67K). The Health Secretary may appoint a chief executive officer (s 67(2)) and an Advisory Board (s 67C) for ambulance services.

The Health Administration Corporation

1. The Health Administration Corporation ('HAC') is a body corporate created pursuant to s 9 of the HA Act: '9 Corporation (1) The Health Secretary is, for the purpose of exercising the functions expressed to be conferred or imposed on the Corporation by or under this or any other Act, hereby incorporated as a corporation sole with the corporate name "Health Administration Corporation". (2) The Corporation - (a) has perpetual succession, (b) shall have an official seal, (c) may take proceedings, and be proceeded against in its corporate name, (d) subject to this Act, may, for the purposes for which it is constituted, purchase, exchange, take on lease, hold, dispose of and otherwise deal with property, (e) may do and suffer all other things that a body corporate may, by law, do and suffer and that are necessary for or incidental to the purposes for which the Corporation is constituted, and (f) is, for the purpose of any Act, a statutory body representing the Crown. (2A) However, the Corporation cannot employ any staff. Note. Staff may be employed under Part 1 of Chapter 9 of the Health Services Act 1997 in the NSW Health Service to enable the Corporation to exercise its functions under this or any other Act … (5) The Corporation is subject to the control and direction of the Minister.'
2. Section 8A of the HA Act permits the Health Secretary's powers to be exercised other than by the Secretary, and instead to be exercised by the HAC: '8A Exercise of Health Secretary's functions through Corporation, joint ventures or other associations (1) A function of the Health Secretary may, if the Health Secretary so determines, be exercised - (a) by the Corporation, or (b) by the Health Secretary (or by the Corporation) in a partnership, joint venture or other association with other persons or bodies. (2) A function of the Health Secretary that is exercisable in relation to anything belonging to, or controlled by, the Health Secretary is also exercisable in relation to anything belonging to, or controlled by, the Corporation. (3) Nothing in this section prevents the Health Secretary from exercising a function in his or her capacity as the Health Secretary and entering into contracts or doing other things on behalf of the Crown.'

POWER TO AMEND A SUMMONS

1. The District Court of NSW has a power to amend pleadings in matters relating to work health and safety prosecutions. The Court's general power to do so was dealt with by the Court of Appeal in G.P.I. (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157; (2011) 207 IR 93. See also: Nash v Glennies Creek Coal Management Pty Ltd [2013] NSWIRComm 60.
2. Section 15 of the Criminal Procedure Act 1986 (NSW) ('CP Act') makes clear that Part 2 applies to all offences whenever committed and in whatever Court dealt with. Thus, Part 2 of Chapter 2 of the CP Act applies to proceedings in the District Court under the Act.
3. Section 15(2) states that the word 'indictment' where used in Part 2 refers to 'any other process or document by which criminal proceedings are commenced'. Therefore, the provisions of ss 16, 20 and 21 apply to a Summons issued by the Court in relation to an alleged offence under the WHS Act.
4. The combined effect of ss 16(1)(f), 16(2), 20 and/or 21 of the CP Act, grants the Court a wide power to amend a summons, having regard to the merits of the case, providing that no injustice is done to the defendant.
5. Section 20 of the CP Act, states: '20 Amendment of indictment (1) An indictment may not be amended after it is presented, except by the prosecutor - (a) with the leave of the court, or (b) with the consent of the accused. (2) This section does not affect the powers of the court under section 21. (3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment.'
6. The relevant provisions of s 21 of the CP Act are set out below: '21 Orders for amendment of indictment, separate trial and postponement of trial (1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case. … (4) An order under this section may be made either before trial or at any stage during the trial. … (6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes.'
7. The Court of Criminal Appeal observed in R v Aldridge (1993) 67 A Crim R 371 at 378 (Sheller JA, Gleeson CJ and Campbell J agreeing) that the term 'defective' as it was used in relation to an amendment of an indictment had been given a liberal interpretation, and includes circumstances where the indictment fails to allege an offence disclosed by deposition.
8. Defects in criminal proceedings that are able to be cured by amendment pursuant to s 21(1) of the CP Act include substantive and non-substantive matters, the latter including the particulars of the charge. Such non-substantive defects in pleadings can often be amended: R v Cox [1999] NSWCCA 62 at [18].
9. Section 21(4) of the CP Act makes it clear that such an amendment may be made at any stage of the proceedings.
10. I accept that the Court has power to amend proceedings instituted pursuant to Part 2 of Chapter 2 of the CP Act, and I accept that in a proper case, the Court has a duty to make the amendment.
11. The application of the statutory provisions that would permit such an amendment to proceedings under the WHS Act were considered in the context of similar offence provisions under the repealed Occupational Health and Safety Act 2000 (NSW) by the Court of Appeal in Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW (2007) 165 IR 7. That decision demonstrates that the power to amend is a wide one subject to ensuring that 'irremediable unfairness' would not result from a particular defect (Basten JA at [133]).
12. There are many other authorities cited by the prosecutor in his written submissions that support the proposition that the Court has the power to make an amendment, however the nature of that amendment is critical.

The Contents of the Summonses

1. In the 'details of the defendant' section, the summonses identify the defendant as 'the Secretary of the Ministry of Health on behalf of the Ambulance Service of NSW'.
2. In the 'description of the offence' section, the summonses identify the defendant as 'the Secretary of the Ministry of Health ('Health Secretary') exercising functions on behalf of the Ambulance Service of New South Wales, being a person conducting a business or undertaking'.
3. Particulars are provided in Annexure A to the summonses. They provide as follows: '1. The Health Secretary, being an individual, was a person conducting a business or undertaking within the meaning of section 5 of the Act. 2. At all material times, the Health Secretary's business or undertaking included the operation of the Ambulance Service of NSW. 3. The Ambulance Service of NSW is a part of the NSW Health Service and is constituted under Chapter 5A of the Health Services Act 1997 (NSW). 4. The Ambulance Service of NSW provides ambulance services throughout the state of NSW. 5. The Ambulance Service of NSW comprises staff of the NSW Health Service who are employed primarily in connection with the provision of ambulance services on NSW. 6. At all material times, the Health Secretary exercised the employer functions of the NSW Government in relation to staff employed in the Ambulance Service of NSW. 7. At all material times, the Health Secretary held the primary functions in relation to the operation of the Ambulance Service of NSW.'
4. I accept that the prosecutor must elect against whom to bring the proceedings. Criminal pleadings must identify with sufficient particularity the person against whom the proceedings are brought.
5. The prosecutor contends that the effect of the proposed amendments to the summonses is that the party whose name is sought to be amended will remain the same in all but the name or description if the amendment is allowed.
6. The defendant submits that at present, the documents themselves show that the prosecutor has elected to charge the individual who was, at the time of the charges, the 'Health Secretary', as the 'Ambulance Service of NSW' is not itself a legal entity. Accordingly, the Health Secretary must be the one to enter any plea as she is the one against whom any criminal sanction will attach.
7. The wording in [6], 'the Health Secretary exercised the employer functions', and then in [7], 'the Health Secretary held the primary functions', to my mind suggest that it is an individual that is named, as he/she holds the primary function. Difficulties may arise however when the actual identity of that person may change, as often occurs, out of necessity, in public offices.
8. Further, in [7], the Health Secretary held the primary functions (my emphasis added) could well relate to a different person, who held other functions, as opposed to the 'primary' functions.

AMENDMENT OF NAMES

1. Sections 16 of the CP Act provides as follows (as presently relevant): '16 Certain defects do not affect indictment (1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds - … (f) for designating any person by the name of his or her office, or other descriptive appellation, instead of by his or her proper name, (2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purpose of any such proceedings, on the grounds of - (a) any alleged defect in it in substance or in form, or (b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant.'
2. I accept that what is contained in s 16 of the CP Act reflects the common law position that any name that is sufficiently clear to identify the intended defendant will be sufficient and not invalidate the proceedings.
3. The defendant concedes that the summonses in the present matter are unorthodox in that they name a person by their office and name a person 'on behalf' of another. They also identify such a person as an 'individual'. On the basis of s 16 of the CP Act, no objection can be taken by the defendant to the way in which the summonses are currently pleaded.
4. The authorities have considered the circumstances in which it is permissible for an amendment to be made to the pleadings to amend the name of a party.
5. The principles were discussed by the High Court in Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231; [1991] HCA 45 ('Bridge Shipping'). This decision concerned particular provisions of the Rules of the Supreme Court of Victoria to an application to amend the name of the defendant in civil proceedings.
6. In Bridge Shipping the distinction was drawn between the circumstances where the proposed amendment would amount to the 'substitution' of a new defendant, and those circumstances where the amendments proposed amount to the amendment of the name of the true defendant (being the entity or person always intended to be prosecuted) to correct a misnomer or misdescription in the identification of the named defendant. It was held in Bridge Shipping that the correction of a misnomer or misdescription does not involve the substitution of a new party except in a technical or formal sense, since the party after the correction is the same person as was misnamed or misdescribed.
7. In Bridge Shipping, Dawson J noted that the line between the correction of a misnomer or misdescription and the substitution of a different party is not always easy to draw.
8. Dawson J then stated at [245]: '245 … the question can only be resolved by asking whether, in all the circumstances, it can reasonably be said that the party whose name is sought to be amended would remain the same in all but name or description if the amendment were allowed. If so, then there is a misnomer or misdescription and the rule applies notwithstanding that, as a matter of formality, the amendment results in the substitution of another entity. If not, and the effect of the amendment would be, not to correct the name of the party, but to alter the identity of the party, then the rule does not apply.'
9. This, to my mind, is the critical test or question.
10. This principle in Bridge Shipping was discussed by the NSW Court of Appeal in the context of a prosecution under the environmental protection legislation in Epacris Pty Ltd v Director-General, Department of Natural Resources (2007) 69 NSWLR 507 (Hunt AJA, Barr and Johnson JJ) ('Epacris').
11. In Epacris an application was made by notice of motion on behalf of the prosecutor to amend 'the form of the summons by replacing the 'Director-General, Department of Planning' in the header with 'Director-General, Department of Natural Resources' as the identity of the prosecutor.
12. In concluding that it was permissible to amend the name of the prosecutor, the Court of Criminal Appeal stated at [53]: '53 We are satisfied that the mistake in naming the prosecutor as the Director-General, Department of Planning, in the header of the summons may fairly be described as a mistake as to the name of the party, and not as to the identity of the party - in the circumstances that the Director-General, Department of Natural Resources, was intended to be the prosecutor, and was named as such elsewhere in the same document and in the linked document prepared by the same solicitor, the order (required by s 246 of the Criminal Procedure Act) that the defendant be dealt with according to law for the offence charged.'
13. The application of the principle enunciated by the High Court in Bridge Shipping to the pleadings in the context of health and safety prosecutions was considered in Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190. This was an appeal involving the amendment of pleading in a prosecution under s 15(1) of a repealed Act - which I note is analogous to s 19(1) of the WHS Act as relevant in these proceedings. The prosecutor had obtained leave to amend the name of the defendant on the basis that the defendant had been 'wrongly styled'. In considering an appeal by the defendant, the Full Bench addressed the issue of the circumstances in which the pleadings could be amended to amend the 'name' of the defendant. The Full Bench set out the applicable principle at [43]: '… We propose to adopt the preferable course of similarly deciding this matter by reference to the statutory provisions directly relied upon. However, we have to repeat that in terms of conceptual reasoning we have found, as indeed the parties themselves did in their respective arguments, the approach of the High Court in Bridge Shipping to be particularly apt. Importantly, as seemingly occurred here, that reasoning makes clear that although the substitution of another entity as the party may occur as a result of the correction of a mistake, that is permissible where the substitution corrects an error in the name of the true or real party intended to be prosecuted; that is, in the name of the party which was, as a matter of fact, prosecuted.'
14. This approach was also adopted in Inspector Dell v TAFE Commission [2004] NSWIRComm 196 where Boland J (as he then was) stated at [9]: '9 It is clear from the decision of the Full Bench in Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190 that the substitution of a new defendant is impermissible. However, the amendment of the name of the true defendant (being the entity or person always intended to be prosecuted) to correct a misnomer or misdescription is permissible.'
15. In that case, Boland J noted that in drawing the charges, the prosecutor seemed to have thought that there were two emanations of the Crown, namely the Department and the TAFE Commission, and that both emanations were inculpated in the alleged offence. After considering the factual circumstances in which the proceedings came to be filed, his Honour concluded: '14 I am satisfied that by allowing the prosecutor to pursue the charges against the TAFE Commission in his amended applications I am not substituting a new defendant. Rather, I am merely allowing the prosecutor to delete the Department of Education and Training as a defendant and to correct a mistake as to the name of the defendant in that the TAFE Commission is not an emanation of the Crown and should not be referred to as such.'
16. I accept that this authority concerned the amendment in civil proceedings in which different considerations apply, although it has been considered as instructive in a number of criminal cases. In any event, I accept that the approach adopted in that case is not relevantly different, as in what may be permitted is to correct a name of the 'same' party, not 'to alter the identity of the party'.
17. The Court of Criminal Appeal in R v Lister (1955) 72 WN (NSW) 491 examined some earlier decisions including R v Norkett, Ex parte Geach (1915) 139 L.t. 316, where it had been held that there was a power to amend to correct a defendant's name if 'the defendant was the person intended to be served at first instance although wrongly described'. Following that line of authority, in Lister, the Court also held that the fact that the proceedings were originally instituted in the wrong name did not deprive the Court of jurisdiction when he was charged in the correct name.
18. In McLean v Case & Deignan Pty Ltd [1961] NSWLR 873, the Supreme Court also held that there was no error amending an information where there had been a 'misdescription or misnomer' of the corporate defendant. More recently (and during the currency of the CP Act), Young CJ in Eq cited Lister for the proposition that 'there is no requirement to summons a defendant by her baptismal name. Any name by reputation suffices': Krivoshev v Royal Society for the Prevention of Cruelty to Animals Inc [2005] NSWCA 76 at [202].

RELEVANT QUESTION

1. In accordance with the CP Act and authorities, whether there is a power to amend depends on whether the amendment is seeking to correct the naming of the same defendant or substitute a new defendant. What s 20 of the CP Act will permit is amendment to correct the name of the correctly identified person (the person who was summonsed).
2. Thus in these proceedings, who do the summonses intend to summons? I accept that this is an objective test, and it does not turn on the intent of the prosecutor.

CIRCUMSTANCES IN WHICH THE HEALTH SECRETARY WAS NAMED AS THE DEFENDANT

1. I accept that in this case the prosecutor identified the PCBU in respect to the conduct of the Ambulance Service of NSW by reference to certain materials provided to it during the course of the investigation. In particular Ms Miller's Affidavit at [9]-[28] summarises the circumstance in which it was determined the appropriate style in which the Crown should be prosecuted in respect of the conduct of its business or undertaking of the Ambulance Service of NSW as Health Secretary. This determination, it is said, was based on a combination of the provisions of the HS Act and the WHS Act.

THE CONSTITUTION OF THE AMBULANCE SERVICE OF NSW

1. The manner in which the Ambulance Service of NSW was 'constituted' and the statutory arrangements by which it conducted its business or undertaking as part of the NSW Health Service demonstrates that the Health Secretary was delegated with the functions in relation to the operation of the Ambulance Service of NSW.
2. The NSW Heath Service consists of those persons employed by the Government of New South Wales in the service of the Crown.
3. The Government of NSW employed staff to enable the Health Secretary to exercise functions under Chapter 5A of the HS Act.
4. The Ambulance Service of NSW was part of the NSW Health Service and was constituted under Chapter 5A of the HS Act.
5. Section 67A(1) of the HS Act provided that the Ambulance Service comprises the staff of the NSW Health Service who are employed primarily in connection with the provision of ambulance services.
6. Section 67B(1) of the HS Act provided that the Health Secretary, on behalf of the Crown, exercised a number of functions, including to provide, conduct and maintain ambulance services in NSW.
7. Section 116 (1)(c) of the HS Act provided that staff could be employed to enable the Health Secretary to exercise his or her functions in relation to ambulance services.
8. Section 116(3) of the HS Act provided that the Health Secretary may, exercise on behalf of the Government of NSW the employer functions of the NSW Government in relation to staff employed in the Ambulance Service of NSW.
9. The prosecutor submits therefore, that it had always been their intention to prosecute the Crown, in relation to the operation of the Ambulance Service of NSW.
10. Thus, the prosecutor submits, on the basis that the Health Secretary had statutory authority to exercise functions on behalf of the Crown, in relation to the Ambulance Service of NSW, the prosecutor was of the understanding that the more appropriate style in which the Crown should be prosecuted in respect to its conduct of the business or undertaking of the Ambulance Service of NSW was as the Health Secretary.
11. At this point I propose to record the submissions of the prosecutor in his first set of written submissions: '72. Despite the Prosecutor: (a) notifying the NSW Health Secretary that SafeWork NSW proposed to commence prosecution proceedings against NSW Health Secretary as the person conducting the business or(sic) undertaking of Ambulance Service NSW; (b) providing the NSW Health Secretary with a proposed Statement of Facts, in which the NSW Health Secretary was named as the proposed defendant; and (c) attending a conference with the parties and their legal representatives to discuss the proposed prosecution of the NSW Health Secretary; the Prosecutor was not informed that the style in which the Crown should be prosecuted in respect to its conduct of the business or undertaking of the Ambulance Service of NSW was not as the 'Health Secretary'. 73. It was not until after the commencement of the proceedings that further information was provided by the defendant's legal representative in respect of the appropriate style in which the Crown, as the defendant, should have been named in respect to its conduct of the business or undertaking of the Ambulance Service of NSW was as the 'Crown in the right of NSW in respect of the Ambulance of NSW'. (Miller Affidavit at [29]-[36]).'
12. I find it a matter of some concern that the central issue to this Notice of Motion was never raised with the prosecutor by anyone acting on behalf of the defendant during the numerous meetings that occurred prior to the commencement of the prosecution. Had this issue been raised by the defendant, there would have been no delay in the institution and progression of this matter, and this motion and the costs associated with it could have been avoided.

PROVISIONS OF THE WHS ACT AND THE CROWN

1. The WHS Act contains provisions dealing with offences and the Crown. Section 245(2) of the WHS Act provides that for the purposes of this Act, any conduct engaged in or on behalf of the Crown by an employee, agent or officer of the Crown acting within his or her actual or apparent authority, is conduct also engaged in by the Crown.
2. Section 248(3) of the WHS Act provides that if proceedings are brought against the Crown for an offence against this Act, the responsible agency in relation to the offence may be specified in any document initiating the proceedings. This would include the Application to Commence and Summonses in these proceedings.
3. Section 248(5) of the WHS Act provides that the person prosecuting the offence may change the 'responsible agency' during the proceedings with the Court's leave. I accept that the provisions of s 248(5) of the WHS Act allow the prosecutor to change the name of the responsible agency with the Court's leave.
4. Section 248(6)(b)(i) of the WHS Act provides that the responsible agency in relation to an offence, is the agency of the Crown, the acts or omissions of which are alleged to constitute the offence.

THE EFFECT OF THE PROPOSED AMENDMENTS

1. There is material that supports the proposition that the summonses intended to prosecute the Crown in the Right of New South Wales, namely: 1. the summonses identify the defendant as 'Secretary of the Ministry of Health on behalf of the Ambulance Service of NSW'. While the Secretary was named, the highlighted words suggest it was for the specific purpose of identifying a particular function of the Crown; 2. the Health Secretary's statutory functions, when not delegated, include operating ambulance services; 3. ambulance services are provided on behalf of the Crown; and 4. the Ambulance Service, as described by the prosecutor, is not itself a person, such that any charge of a contravention of the WHS Act in respect of its operations needs to be brought against a legal person who is a PCBU in respect of those operations.
2. I accept that the evidence supports a finding that the amendments sought fall clearly within the circumstances where they amount to the amendment of the true defendant, namely the Crown in the Right of NSW (being the entity or person always intended to be prosecuted) and therefore are to correct a misnomer or misdescription in the identification of the named defendant. The amendments sought do not involve the substitution of a new party except in a technical or formal sense, since the party after the correction is the same person as was misnamed or misdescribed.
3. I accept that this is not a matter which involves the substitution of a different party, as the NSW Health Secretary was at all times an officer of the Crown acting within actual or apparent authority, and whose conduct pursuant to s 245(2) of the WHS Act was deemed to have been engaged by the Crown.
4. Whilst there is some evidence to the contrary as detailed in the defendant's submissions at [57], I am satisfied that the change is in fact no more than the substitution of one name of the same defendant with another. There is no prejudice to the defendant nor any other reason identified that would cause me to refuse the orders sought.

ORDERS

1. (1) I make orders in accordance with paragraphs 1, 2 and 3 of the Notice of Motion filed 9 April 2021.

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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: 13 August 2021