Australia, Sept. 8 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 8:

1. On 24 September 2024, at the application of SafeWork NSW (the prosecutor), a summons was issued by this Court alleging that Tattam Express Pty Ltd (the defendant), a person who had a work, health and safety duty pursuant to s 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act) failed to comply with that duty and thereby exposed workers, in particular Mr Wayne Skinner, to a risk of death or serious injury contrary to s 32 of the WHS Act.

2. On 21 January 2025, the defendant filed a Notice of Motion seeking an order that the above summons be dismissed. The defendant also sought an order that the prosecutor pay its costs of the proceedings. In summary, the defendant's contention is that it did not owe a duty to Mr Skinner under s 19(1) of the WHS Act, as Mr Skinner was not a worker as defined by s 7(1) of that Act. Rather, he was an "other person" to whom the defendant owed a duty pursuant to s 19(2) of the WHS Act. Accordingly, the prosecution could not succeed.

3. I have determined that Mr Skinner did not come within subss 19(1)(a) or (b) of the WHS Act, he was not someone to whom the defendant owed a duty under s 19(1) of the WHS Act. My reasons follow.

History of the proceedings

4. At the first return date of the defendant's Motion on 6 February 2025, the Motion was stood over to enable the prosecutor to file an Amended Summons, or alternatively, a Motion seeking leave to file an Amended Summons.

5. The matter returned to court on 24 February 2025. On that date, by consent, I granted leave for the prosecutor to file an Amended Summons. After discussion with the parties, the matter was stood over to 24 March 2025, to enable the parties to determine whether there could be agreement as to the facts and evidence that go before the Court for the purposes of determining the Motion. The prosecutor indicated that if there were to be an agreed evidentiary position, it would not object to the Court dealing with the Motion on a preliminary basis.

6. Between 24 March 2025 and 7 May 2025, a series of mentions occurred in which the Court sought assistance from the parties to determine whether it had the power to hear and determine the Motion as a preliminary matter. On 7 May 2025, I determined that this Court has the power to deal with the issue raised by the Motion by way of a preliminary hearing and set the date for that preliminary hearing. Briefly, I did so for the reasons appearing at [7]-[10] below.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1987d1185922cc3a6cece7fd)

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