SafeWork NSW v Western New South Wales Local Health District

Particulars

1. Section 233 of the Act provides: 233 MULTIPLE CONTRAVENTIONS OF HEALTH AND SAFETY DUTY PROVISION (1) 2 or more contraventions of a health and safety duty provision by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences. (2) This section does not authorise contraventions of 2 or more health and safety duty provisions to be charged as a single offence. (3) A single penalty only may be imposed in relation to 2 or more contraventions of a health and safety duty provision that are charged as a single offence. (4) In this section "health and safety duty provision" means a provision of Division 2, 3 or 4 of Part 2.
2. An accepted purpose of particulars is to inform the defendant of the case that it will face and allow the court to link the evidence that is given to the allegations in the originating process: Johnson v Miller (1937) 59 CLR 467.
3. An accused must be informed of how the prosecution will prove that they committed the offence, which may include requiring the prosecutor to specify acts that will be relied upon to establish a charge. This involves an election by the prosecutor which will be binding on the determination of the case and will inform the admissibility of evidence sought to be led: S v The Queen (1989) 168 CLR 266 and Veysey v R (2011) 33 VR 277.
4. The rule against duplicitous counts rests on basic considerations of fairness, namely that an accused should know the case they have to meet: S v The Queen at 335 (Gaudron and McHugh JJ).
5. Adequate particulars are essential to an accused receiving a fair trial. The degree of particularisation required depends on the nature and circumstances of the offence and no single approach can be applied to every case: Veysey v R.
6. In relation to WHS prosecutions the appellate courts have identified a number of relevant matters. The starting point stated in Kirk: Kirk v Industrial Relations of NSW and Anor (2010) 239 CLR 531 is that the prosecutor must identify the measures that the defendant was required to take.
7. In Baiada Poultry Pty Ltd v Glenister [2015] VSCA 344, the Court of Appeal stated at [50]: Equally, to characterise the act or omission constituting the offence as a 'measure' does not deny the possibility, in an appropriate case, of specifying the act or omission by reference to a standard described as 'adequate'. A failure to ensure an adequate system or step to achieve a particular outcome can also be described as a failure to have in place measures sufficient to achieve that outcome. If the outcome is sufficiently particularised, then it will be clear what was the act or omission alleged to constitute the offence.
8. Where the prosecution fails to particularise its case, there is a risk that the judge may provide an underlying narrative or structure to the evidence which was not in fact part of the prosecutor's case, thereby causing the judge to become an advocate for a party: Veysey v R.
9. The court has a common law power to order that the prosecutor provide any particulars that are necessary in the interests of justice: Johnson and Marchesi v Barnes [1970] VR 434. A failure to provide particulars can lead to the dismissal of the charge.

The Court's power to amend the Summons

1. Section 229B(1) of the Act provides that proceedings for offences are to be dealt with summarily before the Local Court or in the summary jurisdiction of the District Court.
2. Section 246 Criminal Procedure Act 1986 provides that a prosecutor may commence summary criminal proceedings in the District Court in accordance with the District Court Rules 1973 (the Rules). Rule 53.26 of the Rules provides that proceedings under s 246 Criminal Procedure Act 1986 must be commenced by the issue of a summons or a warrant for apprehension.
3. Section 15 Criminal Procedure Act 1986 provides that the term "indictment" includes any other processes by which criminal proceedings are commenced.
4. Section 20 Criminal Procedure Act 1986 provides: 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.
5. Section 21(1) Criminal Procedure Act 1986 provides: 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.
6. Sections 20 and 21 of the Criminal Procedure Act 1986 have different purposes. Section 20 confers a discretionary power to permit an amendment and that power must be exercised appropriately. Section 21 is more complex. It requires the court to hold the opinion that the indictment is defective but that amendment can be made without injustice. That opinion is the basis on which the court's power to make an order for amendment is enlivened. The statute does not define what constitutes a defective indictment: Rajendran v R [2010] NSWCCA 322 at [36]-[38].
7. Leave should be granted to amend an indictment unless the accused would be irreparably prejudiced in meeting the amended charge and the loss of a tactical advantage is not sufficient to refuse a grant of leave: Borodin v R [2006] NSWCCA 83.
8. It is permissible to allow amendments of formal matters and substantive matters. A count may be substituted where the facts proved justify conviction under the amended count. The question that the court must answer in exercising the discretion is whether the amendment can be made without injustice: R v Stuart NSWCCA unreported 8 March 1996.
9. The power to grant leave to amend the indictment can be made on terms, to alleviate any potential prejudice: R v Sepulveda [2003] NSWCCA 131 (Giles JA at [26] and Dunford J at [77]).
10. In the case of amendment of a charge after the expiration of a limitation period where the charge fails to allege an essential element of an offence, an amendment that clarifies the charge is permissible and one that goes further is not. An amendment which would result in the formulation of a new and different charge is impermissible because it is an attempt to avoid the limitation period: Director of Public Prosecutions v Kypri (2011) VR 157 at [33] (Nettle JA).
11. If the true nature of the offence is apparent on its face and the defendant has not been misled, or otherwise prejudiced by the omission, the charge may be amended, even out of time, to include the missing element on the basis that such an amendment does no more than clarify what is already apparent from the face of the charge: Kypri at [24], applied in Snowy Monaro Regional Council v Tropic Asphalts Pty Ltd [2020] NSWCCA 74 at [45].

Factual Background

1. The following sets out the factual allegations made by the prosecutor, as best as I can discern them from the information that I have.
2. At all material times: 1. the doctor had managerial responsibility for and supervised junior doctors in the Emergency Department (ED); and 2. the senior doctor had managerial responsibility for all of the doctors working at the Hospital.
3. On 1 October 2020 the doctor raised a formal grievance under the NSW Health Policy Directive "Resolving Workplace Grievances". The grievance was contained in a letter sent by email to the Acting Chief Executive and Director of Medical Services of the defendant. The doctor complained of an ongoing pattern of inappropriate written and oral communication from the senior doctor and the impact that was having on his ability to roster, recruit and train junior doctors (the first issue). The letter also raised an issue with the way work was managed in the rostering and recruitment of junior doctors and the impact that may have on the hospital retaining its accreditation as a training hospital for junior doctors (the second issue). The doctor stated that the first issue was the most acute and the focus of the grievance. The letter attached four earlier emails as evidence of the types of inappropriate communications engaged in by the senior doctor, as follows: 1. an email dated 25 October 2019 from the senior doctor to Dr S relating to his leave and copied to the doctor and one other person; 2. an email dated 2 July 2020 from the senior doctor to nine other persons, which excluded the doctor, who had been a previous recipient in the email chain on a topic that concerned his role; 3. an email dated 24 September 2020 from the senior doctor to the doctor that was copied to four other persons; 4. an email dated 5 August 2029 from the doctor to the senior doctor and one other person relating to the doctor's concerns relating to the hospital's intern recruitment process and staffing concerns relating to the junior doctors.
4. On 26 October 2020 the doctor sent an email to management at the Hospital attaching a copy of a letter that he had sent to the Chair of the Prevocational Accreditation Committee of The Health Education and Training Institute (HETI), outlining his concerns for the training of junior doctors at the hospital. HETI is a New South Wales government education provider for staff in the New South Wales health system.
5. On 13 November 2020 the General Manager of the hospital informed the doctor that he was under investigation for communicating with HETI purportedly on behalf of the Hospital, allegedly in breach of the New South Wales Health Code of Conduct.
6. On 14 January 2021 the doctor sent an email to unknown recipients, [1] stating that the "bullying" had become worse and particularising further instances of alleged inappropriate conduct by the senior doctor.
7. On 11 February 2021 the doctor sent a further email to unknown recipients, [2] providing an update on his experience which included further instances of alleged inappropriate conduct by the senior doctor.
8. On 15 February 2021 the doctor was diagnosed with a psychological injury.
9. At all material times, NSW Health had in place detailed policies and procedures to respond to workplace grievances and the management of bullying complaints, which are conveniently summarised in flowchart diagrams described as "risk assessment templates" contained in the relevant documents. The basic tenet of the prosecution case is that the defendant failed to comply with its own procedures, throughout the charge period which led to the doctor suffering psychological injury.

The Original Summons

1. The original summons was filed on 27 October 2022.
2. The original summons alleged that the doctor was exposed to a risk to his physical or psychological health as a result of the defendant failing to adequately manage grievances or complaints in the workplace. I note that grievances and complaints were used interchangeably and I will only refer to grievances from this point onwards.
3. Paragraph 10 of the original summons pleaded: 10. The defendant failed to comply with its duty under section 19(1) of the Act and failed to ensure, so far as is reasonably practicable, the health and safety of workers, in particular XX, 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: 1. Provide and maintain a positive workplace culture and/or relationship; 2. Adequately identifying, utilising and implementing all relevant systems document and the process requirements to provide and maintain organisational justice or procedural justice, or both; 3. Adequately following the emailed recommendations of SafeWork NSW Principal Inspector Ainslie Lalor; 4. Undertaking and documenting in a timely manner an adequate risk assessment to determine whether any appropriate interim risk control should be implemented or immediate action, or both, is required to manage ongoing risks in the workplace to the physical or psychological state, or both, of Junior Medical Officers or XX, or both; 5. Throughout the defendant's management process covered by the investigation process until the completion of the decision-making process, regularly reviewing any risk assessment referred to in subparagraph (iv) or conducting a new risk assessment, or both, to risk manage the physical or psychological health, or both, of the complainant XX; 6. Properly investigating by gathering and analysing all available relevant information; 7. Engaging an independent person to undertake a fair, objective and impartial investigation; 8. Conducting an adequate initial assessment or review of the grievances or complaints, or both, by acting promptly or without delay, or both, to identify whether they related to allegations of bullying or other issues, for example, grievance, performance or misconduct; 9. Gaining and maintaining from DMS XX a commitment to cease the behaviour and/or an acknowledgment to XX of the impact of the behaviour and any apology; 10. Adequately communicating and informing XX of the defendant's management of the doctor's 1 October 2020 email by keeping the doctor informed of progress in managing the doctor's grievance or complaints, or both, expected timelines, the outcome of any initial assessment or view, the outcome of any risk assessment, the progress and outcome of any investigation and/or any delays in the management process.
4. A fair reading of the original summons suggests that the prosecution's allegations against the defendant were confined to its inadequate responses to the doctor's grievance, which was a bullying complaint, during the course of the charge period.

The Statement of Facts

1. The Statement of Facts (SoF) was filed with the original summons. The SoF can be considered in determining the meaning and scope of the pleadings.
2. The SoF identified the relevant NSW Health policies, procedures and directives in [10] of that document.
3. At [14] the SoF identified that the NSW Health Code of Conduct was the basis for developing a positive workplace culture within NSW Health that reflected its core values of Collaboration, Openness, Respect and Empowerment. At [15] the SoF identified workplace bullying as a risk to health and safety.
4. The SoF outlined a chronology of events beginning with the senior doctor's email of 24 September 2020, which was the catalyst for the doctor raising the grievance on 1 October 2020, and concluding with the doctor going on sick leave in February 2021 as a result of him suffering a psychological injury. The SoF describe an inadequate response to a bullying complaint over the charge period, in the context of the doctor continuing to perform his role within the ED and re-applying for his role in the ED, which involved further contact with the senior doctor. The SoF recites further complaints by the doctor of inappropriate conduct against the senior doctor in that period.
5. The SoF refers to the second issue raised in the 1 October 2020 letter at [80]. On or about 25 November 2020, the doctor was advised that there would be a district wide Medical Administration Review in the coming weeks, conducted by an external consultant. The doctor was encouraged to participate and to raise his system and process related concerns in that forum. The SoF contains no other mention of the second issue.

The prosecutor's response to the request for particulars

1. Before turning to the consideration of the PAS, it is necessary to make some observations about the prosecutor's response to the request for particulars on the PAS.
2. First, the request for particulars was comprehensive and at times were framed in a way likely to add to the lack of specificity in the PAS. For example, it is obvious that the terms "organisational justice", "procedural justice" and "procedural fairness" used in the PAS mean the same thing and are used interchangeably. This pattern was repeated for "grievances" "concerns" or complaints and "workplace culture" and "workplace relationships". This has made the PAS unnecessarily prolix. However, by framing each relevant request for particulars by reference to each of these terms separately, the defendant was unlikely to secure responses that narrowed the issues; see for example question 6 of the request.
3. Second, the response to almost all of the questions included that the enquiry was "a matter for evidence". For the most part, that was not a proper response because it did not identify the precise allegation that the prosecutor was making. For example, when asked the meaning of "unsafe or poor workplace culture" and "unsafe or poor workplace relationships", the prosecutor responded to the effect that the meaning of the terms was a matter for evidence and not a proper request for particulars. The response then referred to some of the guidance material and some of the NSW Health policies and procedures. This was an inadequate response. The defendant was entitled to ask about and understand the meaning of a term used and repeated by the prosecutor in the PAS. I agree with the defendant's submission on this point that whilst the prosecutor identified some uses of the terms in some guidance material, it did not commit to a definition of the relevant terms that it would rely on in the case. It would have been relatively simple to select a definition from the guidance material, or from the NSW Health policies and procedures that the prosecutor would rely on to prove its case.
4. Third, the responses to particulars sought to introduce concepts that are not referred to in the PAS or in the SoF. For example, in the answer to question 1 of the request for particulars, the prosecutor seeks to rely on "secondary or vicarious trauma" being the impact on the doctor of how others were treated at the Hospital. The other persons identified include nine named persons and an unidentified class of junior medical officers.
5. Fourth, the responses to particulars contain multiple cross references to other responses, such that the response to a large number of requests is not contained in one place. This adds to the difficulty in identifying the prosecution case against the defendant.

The PAS

1. The PAS was served on or about 14 February 2024, well outside the two year limitation period for the offences.
2. Paragraphs 10(i)-(vi) and 10(e) clarify the allegations against the defendant and are superior to the original summons. I am satisfied that those paragraphs better expose the case to be met by the defendant and that those amendments should be allowed.

The new and expanded allegations

1. The PAS seeks to introduce a number of new and expanded allegations. For the reasons that follow, each of those attempts to expand the case, following the expiry of the limitation period should be rejected. I will deal with each in turn.
2. In coming to my conclusions on each of the relevant paragraphs of the PAS, I have also taken into account that the doctor is entitled to have the case dealt with as quickly and efficiently as possible.
3. First, the PAS pleads in 10(vii) that the defendant breached its health and safety duty by failing to adequately deal with the second issue in the 1 October 2020 letter, namely how the work was managed in the ED, with respect to rostering, recruiting and training junior doctors. As I understand the prosecution case, it will be alleged that the doctor suffered stress and anxiety arising from the inadequate resourcing of the ED. During the course of argument on 29 November 2023, counsel for the prosecutor indicated that the prosecution would seek to rely on the doctor's evidence to demonstrate that the defendant did not adequately resource the ED to make good this allegation. This new allegation is in effect that the defendant was required to allocate its scarce resources to fund the ED in the way contended for by the doctor, so as to minimise the chance of the doctor suffering a psychological injury as a result of performing his role in the ED, on the basis of the resources allocated to the ED within the NSW Health system in the midst of the COVID-19 pandemic. In my view, this allegation is not readily amenable to resolution through the prosecution of a s 32 charge. Further, if the prosecution intends to only rely on the doctor's evidence, or primarily on the doctor's evidence to prove the allegation, the prosecution case on the allegation is patently hopeless. On the other hand, if the defendant wanted to investigate a positive defence to this allegation, I anticipate that it would have to examine a vast amount of material to do so. This would cause further delay and substantial prejudice to the defendant at this stage of the proceedings.
4. Second, the PAS pleads in 10(viii) that the defendant should have ensured fair and equitable treatment of staff who were supportive of the doctor's grievances. This allegation involves the potential for a wide-ranging factual inquiry into the treatment of numerous other unidentified staff members. It will require an analysis of the treatment of each staff member to determine if they were, or were not, treated fairly and then it requires a further analysis of what the doctor knew about the relevant facts and circumstances and the impact that it had on him. I anticipate that it would involve a substantial amount of preparation on behalf of the defendant to meet this type of allegation. This would cause further delay and substantial prejudice to the defendant at this stage of the proceedings. To be clear, it was open to the prosecution to plead this allegation before the expiry of the limitation period, but to allow it to do so now would be to allow the prosecution to run a further and entirely new allegation of breach of duty after the expiry of the limitation period.
5. Third, the PAS pleads in 10(b)(1) that the issues raised in the 24 September 2020 email, which was annexed to the 1 October 2020 letter, should have received individual attention. I do not understand the reason why the 24 September 2020 email requires individual analysis. It was clearly a matter that the doctor referred to as inappropriate behaviour by the senior doctor in his 1 October 2020 grievance. The 24 September 2020 email is covered by the charge period and will be considered as a part of the defendant's conduct in the charge period. The amendment does not clarify the charge or add to it. I cannot see the utility of allowing the amendment, out of time, or at all.
6. Fourth, the PAS pleads in 10(2) and (3) that the defendant breached its health and safety duty by failing to provide procedural justice in seven particular respects relating to emails from the doctor dated 14 January 2021 and 11 February 2021. These emails were not referred to in the original summons. These new allegations expand the case that the defendant is required to meet in that they require the defendant to take specified reasonably practicable steps in response to each email. Further, it is alleged that the defendant should have conducted a risk assessment of the wellbeing of the junior doctors based on the grievances of persons other than the doctor. These allegations expand the nature of the case against the defendant and requires it to consider its response to these later emails in relation to the doctor and other unidentified people with grievances. I accept that these new allegations are within the charge period, however that also makes them relevant to the case because the prosecution case is that the defendant's response to the doctor's bullying complaint was inadequate in the charge period. However, the focus of the original charge was the doctor and the prosecution should not be permitted to allege that the defendant failed to ensure the health and safety of other workers when it has previously eschewed that position and after the limitation period has expired.
7. Fifth, the PAS pleads in 10 that the defendant's investigation of the doctor for his contact with HETI was an illustration of the defendant's failure to provide organisational justice by dealing with the second issue in the 1 October 2020 letter. For the reasons given, the inadequate resourcing allegation is not amenable to resolution by reference to s 32 of the Act. It is a relevant matter because it occurred within the charge period, but as to whether it is relevant to the determination of the charge is unclear. I do not know if the prosecutor is alleging that the investigation of the doctor was an improper adverse action. If that is what is alleged, the allegation is a serious one and it would require significant investigation by the defendant. This would cause further delay and substantial prejudice to the defendant at this stage of the proceedings.
8. In my view the matters pleaded in 10(vii)-(viii), 10, 10 and 10 are new and expanded allegations and the application to amend the Summons to include those paragraphs is refused. As a consequence of my disallowance of 10, (c) and (d), the matters pleaded in [11] and [12] are superfluous and the application to amend the Summons to include those paragraphs is also refused.

The particulars of the risk

1. The prosecutor seeks to amend the particulars of the risk alleged in the original summons by the inclusion of [9] of the PAS, which provides:
2. 9. The risk was the risk to Dr Westcott's physical or psychological health, or both, as a result of: 1. unsafe or poor workplace culture or workplace relationships; and/or 2. unsafe or poor organisational justice or procedural justice (also known as procedural fairness) by failing to adequately manage grievances, concerns or complaints at the workplace.
3. The effect of [9] of the PAS is to introduce the allegation that there was a risk to the doctor's physical or psychological health as a result of "unsafe or poor workplace culture or workplace relationships" and that the failure to manage the doctor's grievance was a result of "unsafe or poor organisational justice or procedural justice".
4. The pleading in [9] is replete with repetition which is unhelpful to any attempt to analyse it. I will try to avoid the repetition in my analysis.
5. There is a considerable degree of overlap between the concepts referred to in [9]. Poor workplace relationships are likely to be present if grievances, such as bullying complaints, are dealt with through a poor system of organisational justice. A positive workplace culture cannot exist if poor workplace relationships exist.
6. The concepts of a positive workplace culture and organisational justice are referred to in the guidance material and in the NSW Health policies.
7. The pleaded risk in the original summons was an allegation of poor organisational justice, without using those words. The original summons pleaded a failure of the defendant to properly respond to the doctor's grievance (a bullying complaint), which ultimately led to his psychological injury.
8. It is unclear to me if the prosecution seeks to allege by the amendment in [9] of the PAS, that the defendant should have taken steps to prevent a poor working relationship developing between the doctor and the senior doctor in the first place. If that is what is alleged, then it represents a new and significant expansion of the case that would require significant investigation by the defendant and cause it significant prejudice. I will not allow that amendment if it is intended to have that effect, after the expiry of the limitation period.
9. To avoid any doubt, or arguments in the future, I will allow the amendment of [9] of the original summons to read: The risk was the risk to [the doctor's] physical or psychological health as a result of poor organisational justice by failing to adequately manage grievances in the workplace.

Directions for Future Conduct

1. It has become apparent in the course of reviewing the factual allegations in some detail that some specific organisation of the material will be essential if the case proceeds to hearing.
2. The Court Book should include a volume, or volumes, dedicated to the relevant correspondence within the charge period, presented in a strictly chronological order, without duplicates and not presented in email chains. No other documents should be included in the volume(s). The relevant guidance material and the NSW Health policies and procedures should be provided in separate volume(s), also in strict chronological order.
3. Any other documents can be included in a separate volume(s), in a sensible order.

Orders

1. The orders I make are as follows: 1. I grant leave to the prosecutor to amend the summons to include [9] of the PAS as set out in this judgment, and 10(i)-(vi) and 10 of the PAS. 2. I disallow the amendments pleaded in 10(vii)-(viii), 10, 10 and 10, [11] and [12] of the PAS. 3. The prosecutor is to file an Amended Summons on or before 4pm on 9 September 2024.

Endnotes

1. I am unable to discern who the email was sent to from the materials tendered.
2. Ibid.

Amendments 18 September 2024 - Relevant persons de-identified in [49] 19 September 2024 - Representation of counsel included 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: 19 September 2024