SERIAL C2275

 

Industrial Relations Commission of New South Wales

 

PRACTICE DIRECTION No 12

 

Occupational Health and Safety Prosecutions - Standard Timetable and Directions

 

Pursuant to Rule 89 of the Industrial Relations Commission Rules 1996

 

1.          The purposes of this Practice Direction are to facilitate the effective case management of prosecutions brought before the Commission in Court Session (the Court) under the Occupational Health and Safety Act 2000 by prescribing standard directions and timetables for such matters and, as far as practicable, to ensure that such matters are dealt with in an orderly and expeditious manner.

 

2.          This Practice Direction shall come into force 14 days after publication in the Industrial Gazette.

 

On initiation of proceedings.

 

3.          Upon an Order being made by the Court, the Prosecution shall forthwith serve on the Defendant the following documentation:

 

(i)         a Certified Copy of the Order, a copy of the Application for an Order together with any supporting Affidavits;

 

(ii)        a blank Notice of Appearance (Form 37);

 

(iii)       a copy of this Practice Direction; and

 

(iv)       an explanatory document advising the defendant of its obligations to file and serve a Notice of Appearance and the consequences of its failure to appear at the first Directions Hearing or otherwise in the proceedings.

 

4.          The Defendant, or the Defendant's legal representative, is to file with the Industrial Registrar and serve on the Prosecution a Notice of Appearance within seven days of service of the Certified Copy of the Order and associated documentation.

 

Service of brief of evidence.

 

5.

 

(i)         Where a Notice of Appearance has been filed and served on the Prosecution by the Defendant's legal representative, the Prosecution brief of evidence is to be served on the Defendant's legal representative within 14 days of service of the Notice of Appearance.

 

(ii)        Service in accordance with sub-paragraph (i) may be effected by leaving it at the relevant legal practitioner's address for service or by sending it to that address by post, document exchange or, to the extent that the documents in the brief make it appropriate to do so, by facsimile or by sending it to the legal practitioner's email address for service by electronic communication.

 

(iii)       Where no Notice of Appearance has been filed and served on the Prosecution or a Notice of Appearance has been filed and served but discloses no legal representative, the Prosecution brief of evidence is to be served on the defendant no later than seven days before the date of the first Directions Hearing before the Court.

 

Directions hearing.

 

6.

 

(i)         A matter is to be listed for its first Directions Hearing within six to eight weeks of the issue of an Order by the Court.

 

(ii)        Where a brief of evidence has been served in accordance with paragraph 5(i) of this Practice Direction the Defendant's legal representative should be (subject to paragraph 6(iii) and paragraph 6(iv)(b)) in a position at the first directions hearing to enter, or indicate to the Court the Defendant's intention to enter, a plea of not guilty or guilty.

 

(iii)       Where a defendant on proper grounds will not be able to enter a plea within four weeks of the service of the prosecution brief, the defendant must, at the first Directions Hearing:

 

(a)        advise the date when the brief was received;

 

(b)       specify how long it needs from the date of service of the brief to enter a plea;

 

(c)        give reasons (or, if appropriate - for example, if there is an issue with the prosecution as to the adjournment sought - provide evidence by affidavit) for the time period sought if that period exceeds a total period of eight weeks from service of the prosecution brief; and

 

(d)       undertake to ensure that all preliminary procedural matters (for example, the matters referred to in paragraph 6(iv)(b)) are attended to during any adjournment granted.

 

The Court will then determine the period of the adjournment, which will be no longer than 12 weeks from the date of the service of the prosecution brief.

 

(iv)       At the first Directions Hearing, where a brief of evidence has not been served or has been served and there are matters that need to be resolved prior to a plea being entered, the Court will make directions as follows as appropriate but not limited to:

 

(a)        as to the service of the brief (if service remains outstanding);

 

(b)       as to a timetable for requests or provision of particulars or other procedural matters (for example, expert evidence) that require resolution; and

 

(c)        in respect of large and/or complex matters, as to future case management to ensure that the matter is dealt with as expeditiously as possible.

 

If required, the matter is to be listed for a second or third Directions Hearing at not greater than four-week intervals thereafter.

 

Entering of Plea.

 

7.

 

(i)         Prior to any third Directions Hearing, the Defendant must indicate to the Prosecution what plea it intends entering at the hearing of the matter unless an application has been made to the Court to vary the Standard Timetable.

 

(ii)        At the third Directions Hearing, subject to any order made by the Court on an application by the defendant, in the absence of a plea being entered, the matter will be referred for allocation to a Judge for hearing on the basis of a not guilty plea.

 

Plea of Guilty entered.

 

8.

 

(i)         Once the Court has allocated a hearing date for the plea of guilty, subject to the hearing date set and subject to sub-paragraph (iii) below the following timetable applies:

 

(a)        any further evidence to be relied upon by the Prosecution together with a Statement of Facts (agreed if possible) is to be filed and served by the Prosecution no later than six weeks before the date appointed for the hearing of the plea.

 

(b)       evidence to be relied upon by the Defendant is to be filed and served no later than three weeks before the date appointed for hearing of the plea.

 

(c)        evidence in reply by the Prosecution is to be filed and served no later than one week before the date appointed for hearing of the plea.

 

(ii)        The above standard directions have been prepared on the basis that specific directions have been earlier made in respect of the service of expert evidence between the parties in preparation for the hearing of the plea.  In the event that such directions have not been made either the Court or Registrar as appropriate, should be requested by the parties to modify the standard directions to ensure that expert evidence is served in a way that allows each party to obtain instructions on such evidence and, if appropriate, reply to such evidence before the allocated hearing date.

 

(iii)       Where a party objects to the Judge hearing the plea reading any particular document or class of documents prior to the hearing the Registrar shall be advised in writing of the objection with a copy of the subject letter being sent to the Judge's Associate and the document(s) shall either be returned to the relevant party or placed in the Court file in a sealed envelope.

 

Variation of Standard Directions.

 

9.          Parties are at liberty to apply to the Registrar, or where the matter has been allocated to a Judge, the Judge to vary the Standard Directions.

 

 

Dated:  15 October 2003

F. L. WRIGHT  J, President