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SafeWork NSW v Miller Logistics Pty Ltd; SafeWork NSW v Mitchell David Doble [2023] NSWDC 252 (13 July 2023)

Last Updated: 13 July 2023



District Court
New South Wales

Case Name:
SafeWork NSW v Miller Logistics Pty Ltd; SafeWork NSW v Mitchell David Doble
Medium Neutral Citation:
Hearing Date(s):
6 July 2023
Date of Orders:
13 July 2023
Decision Date:
13 July 2023
Jurisdiction:
Criminal
Before:
Russell SC DCJ
Decision:
In each matter:
(1) Dismiss the Notice of Motion filed by the defendant Mitchell David Doble on 19 June 2023.
(2) Order the defendant Mitchell David Doble to pay the costs of SafeWork NSW in relation to the Notice of Motion.
(3) Confirm that both matters will proceed together as defended hearings commencing on 12 February 2024.
(4) Liberty to restore the matters to the Monday WHS List on 3 days notice.
Catchwords:
CRIMINAL PROCEDURE — trial — separate trial application — two accused persons — offences arise out of the same circumstances — issues common to both proceedings — whether the matters ought to be heard and determined separately in the interests of justice — taking into account conserving costs, avoidance of inconvenience to witnesses and rights of accused
Legislation Cited:
Cases Cited:
Orr v Moolarben Coal Pty Ltd; Orr v Chaplin [2020] NSWDC 739
Roach v R  [2019] NSWCCA 160 
Symss v The Queen [2003] NSWCCA 77
Category:
Procedural rulings
Parties:
Proceedings 2022/144479
SafeWork NSW (Prosecutor)
Miller Logistics Pty Ltd (Defendant)

Proceedings 2022/144530
SafeWork NSW (Prosecutor)
Mitchell David Doble (Defendant)
Representation:
Counsel:
Proceedings 2022/144479
M Scott (Prosecutor)

Proceedings 2022/144530
M Scott (Prosecutor)
M Baroni (Defendant)

Solicitors:
Proceedings 2022/144479
Department of Customer Service (Prosecutor)

Proceedings 2022/144530
Department of Customer Service (Prosecutor)
Holman Webb (Defendant)
File Number(s):
2022/144479, 2022/144530

JUDGMENT

Background

  1. The defendant Miller Logistics Pty Ltd (Miller) conducted a transport depot at Tamworth. On 4 November 2020 a forklift driven by Mr Hill collided with a worker Mr Herden. Mr Herden suffered serious injuries as a consequence of the incident.
  2. SafeWork NSW (SafeWork) filed a Summons in this court alleging that Miller, being a person conducting a business or undertaking who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (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, did fail to comply with that duty and the failure to comply with that duty exposed workers, including Mr Christopher Herden, to a risk of death or serious injury contrary to s 32 of the WHS Act.
  3. SafeWork also filed a Summons against Mr Mitchell David Doble alleging that he was an officer of Miller, and having a health and safety duty under s 27(1) of the WHS Act to exercise due diligence to ensure Miller complied with its duty under s 19(1) of the WHS Act, he failed to comply with his duty and the failure to comply with that duty exposed Mr Christopher Herden to a risk of death or serious injury contrary to s 32 of the WHS Act.
  4. On 2 March 2023 Mr Gavin Moss was appointed liquidator of Miller by special resolution of the sole member of Miller. That sole member was Mr Doble, who was also the sole director of Miller.
  5. On 6 March 2023 both matters came before Judge Scotting for directions. The court noted that Miller went into liquidation on 2 March 2023. The proceedings against Miller were stood over to 3 April 2023.
  6. On 6 March 2023 before Judge Scotting Mr Doble pleaded not guilty. His proceedings were also stood over to 3 April 2023.
  7. On 3 April 2023 both matters came before me for directions. In relation to Miller, it was noted that the liquidator did not intend to appear. The matter was stood over for directions on 30 May 2023.
  8. On 3 April 2023 I made orders in the matter of Doble in accordance with Consent Orders filed in court. These orders concerned the steps to be taken under the Criminal Procedure Act 1986 (NSW) (the CP Act) with a view to moving the matter towards a defended hearing. The proceedings were stood over to 30 May 2023.
  9. On 30 May 2023 both matters were listed before Judge Strathdee for directions. Her Honour stood the Doble matter over for the hearing of a Motion returnable on 6 July 2023. Directions were made for the filing of evidence and submissions. The parties have complied with those directions. Order 4 made by her Honour was as follows:
“Tentatively listed for hearing on Monday 12 February 2024 with an estimate of 5 days. Hearing date to be confirmed when motion is determined.”
  1. On 30 May 2023 Judge Strathdee recorded a plea of not guilty in relation to Miller, as there was no appearance by that defendant. The matter was stood over for directions on 6 July 2023 and tentatively listed for hearing on 12 February 2024 with an estimate of five days.
  2. Thus, both matters were provisionally listed to be heard together. No formal order was made in those terms, and the question of how the matters should proceed (whether together or separately) was a matter for determination on the Motion to be filed by Mr Doble.
  3. On 19 June 2023 Mr Doble filed a Notice of Motion returnable on 6 July 2023. He sought orders that the two matters be heard separately and that his matter be heard first.
  4. The Notice of Motion was supported by an affidavit of Ms Mataere, solicitor, dated 19 June 2023 (DX 1). Ms Mataere annexed a copy of the Summons and Statement of Facts in the Miller proceedings and a copy of the Summons and Statement of Facts in the Doble proceedings. Ms Mataere deposed that each defendant was served with the Brief of Evidence by SafeWork on 7 July 2022. The Brief of Evidence in each matter was identical. Ms Mataere had previously been instructed to act on behalf of Miller, as well as Mr Doble, but ceased acting for Miller on 3 March 2023, after the liquidator was appointed.
  5. In the Miller court file is a letter dated 3 March 2023 from the liquidator Mr Moss to the District Court of NSW, with a copy to SafeWork (MFI 3). Mr Moss said:
“I advise that in my capacity as the Liquidator of the Company, I neither consent nor object to any orders that may be sought by SafeWork NSW against the Company for the purpose of the Proceedings. Any orders made against the Company will be an unsecured debt against the Company.”

Joint or Separate Trials

  1. Section 29 of the CP Act deals with when more than one offence may be heard at the same time. Section 29 provides as follows:
“(1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances—
(a) the accused person and the prosecutor consent,
(b) the offences arise out of the same set of circumstances,
(c) the offences form or are part of a series of offences of the same or a similar character.
(2) A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances—
(a) the accused persons and the prosecutor consent,
(b) the offences arise out of the same set of circumstances,
(c) the offences form or are part of a series of offences of the same or a similar character.
(3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.”
  1. In Roach v R  [2019] NSWCCA 160  the court said:
“80 Section 29(1) is an important provision designed to promote and facilitate the fair and efficient disposition of criminal justice. It affords the court a broad power to hear and determine related offences. In this regard, as Mr Glissan QC accepted, the expression “arise out of” in subsection (b) is of particularly broad ambit. It is an expression which is used in other contexts to promote the efficient resolution of related disputes: Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd [1996] NSWSC 104; (1996) 39 NSWLR 160 at 165.

81 Section 29(3) Criminal Procedure Act is also important:

‘Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.’
82 In the context of s 29(3), this Court has observed that the interests of justice extend beyond the interests of an accused person, with the interests of the Crown, witnesses and the public to be considered as well: Osman v R [2006] NSWCCA 196 at [22]. In a different context, the High Court of Australia has observed that the interests of justice will often pull in different directions, involving consideration of the interests of an appellant (an accused person) as well as the interests of the Crown and the community: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at 614; [32].”
  1. In Symss v The Queen [2003] NSWCCA 77, the Court of Criminal Appeal said at [68]-[76] that usually those charged with essentially the same offences will be tried together. The court said that relevant considerations include conserving costs, avoidance of inconvenience to witnesses and the desirability of common enterprises being jointly tried so as to avoid inconsistent verdicts.

The Offences Charged

  1. Miller is charged with a breach of s 19(1) of the WHS Act which provides as follows:
“19 Primary duty of care

(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—

(a) workers engaged, or caused to be engaged by the person, and
(b) workers whose activities in carrying out work are influenced or directed by the person,
while the workers are at work in the business or undertaking.”
  1. Mr Doble is charged with a breach of s 27 of the WHS Act which provides as follows:
“27 Duty of officers

(1) If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation.

(2) Subject to subsection (3), the maximum penalty applicable under Division 5 of this Part for an offence relating to the duty of an officer under this section is the maximum penalty fixed for an officer of a person conducting a business or undertaking for that offence.

(3) Despite anything to the contrary in section 33, if the duty or obligation of a person conducting a business or undertaking was imposed under a provision other than a provision of Division 2 or 3 of this Part or this Division, the maximum penalty under section 33 for an offence by an officer under section 33 in relation to the duty or obligation is the maximum penalty fixed under the provision creating the duty or obligation for an individual who fails to comply with the duty or obligation.

(4) An officer of a person conducting a business or undertaking may be convicted or found guilty of an offence under this Act relating to a duty under this section whether or not the person conducting the business or undertaking has been convicted or found guilty of an offence under this Act relating to the duty or obligation.

(5) In this section, due diligence includes taking reasonable steps—

(a) to acquire and keep up-to-date knowledge of work health and safety matters, and
(b) to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations, and
(c) to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking, and
(d) to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information, and
(e) to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act, and
Example—
For the purposes of paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include—
• reporting notifiable incidents,
• consulting with workers,
• ensuring compliance with notices issued under this Act,
• ensuring the provision of training and instruction to workers about work health and safety,
• ensuring that health and safety representatives receive their entitlements to training.
(f) to verify the provision and use of the resources and processes referred to in paragraphs (c)–(e).”
  1. It can be seen that essential elements in s 27(1) require proof that a person conducting a business or undertaking had a duty under the WHS Act and breached that duty. If there is no duty or no breach of duty proved by the prosecution, then logically there can be no failure to exercise due diligence.
  2. In this sense the existence of a duty cast upon a person conducting a business or undertaking by the WHS Act, and the breach of that duty, are matters common to both of the present proceedings. As to both matters, the prosecutor bears the onus of proof to the criminal standard.

Submissions for Mr Doble

  1. Counsel for Mr Doble served written submissions (MFI 1) and expanded upon those in oral submissions. In summary the submissions were:

Submissions for SafeWork

  1. Counsel for SafeWork filed written submissions (MFI 2) and spoke to them. In summary the submissions in response to Mr Doble’s submissions were (adopting the same numbering as the immediately preceding paragraph):
  2. In addition, counsel for SafeWork submitted that witnesses will need to travel from Tamworth to Sydney to give evidence, which of necessity is disruptive and inconvenient to those witnesses. They should not have their lives disrupted twice (MFI 2, pars 14-15). Further, to have two separate trials, which involve the tender of the same documents and the calling of the same witnesses, is a waste of costs on the part of the court and the prosecutor. As the above authorities show, these are relevant considerations to the “interests of justice” test in s 29(3) of the CP Act.

Consideration

  1. I accept all of these submissions made by counsel for SafeWork.
  2. As previously recited, SafeWork must prove that Miller had a duty under the WHS Act, and breached that duty, in both the Miller prosecution and the Doble prosecution. The documentary evidence and the witnesses on these issues are identical in both proceedings. Mr Doble will not be sitting around, at great cost, listening to evidence in the Miller case which is irrelevant to his case. These proceedings are very different to the decision to order separate trials in a case cited by counsel for Mr Doble – Orr v Moolarben Coal Pty Ltd; Orr v Chaplin [2020] NSWDC 739 at [41]- [54].
  3. Mr Doble will have a full opportunity to challenge the evidence against Miller, and that will be so whether the trials proceed simultaneously or separately.
  4. It would be wasteful of public monies to hold separate trials, when in my view a joint trial can be held without any prejudice to the rights of Mr Doble to a fair trial.
  5. The risk pleaded in par 13 of the Miller Summons is in identical terms to the risk pleaded in par 14 of the Doble Summons. Both Summonses plead the incident involving injury to Mr Herden which occurred on 4 November 2020. The breach of duty pursuant to the WHS Act alleged against Miller is pleaded in par 14 of the Miller Summons. The Doble Summons pleads precisely the same breach of duty by Miller in par 15 of the Doble Summons. While the Doble Summons goes on in par 16 to plead the ways in which Mr Doble failed to exercise due diligence, there can be no doubt that the alleged offences “arise out of the same set of circumstances” – s 29(2)(b) of the CP Act.

Conclusion and Orders

  1. I find as follows:
  2. The orders of the court are:

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