CDI Lawyers successfully strikes out charge for alleged work health and safety breach

Jay Hatten (Special Counsel), who led a team along with Christopher Rowden (Principal), successfully acted for Kawasaki Heavy Industries (Japan) in having a charge relating to alleged breaches of health and safety obligations struck out in their entirety.

The charge arose from a tragic fatality of a worker of Kawasaki’s subcontractor, Whittens Pty Ltd, at the Ichthys LNG Project in the Northern Territory.

The Northern Territory Work Health Authority alleged that Kawasaki had failed to discharge a work health and safety duty, which the Authority asserted had exposed an individual to a risk of death or serious injury or illness. Whittens was also charged.

In the proceedings, Kawasaki argued:

  1. the charge laid was defective and did not disclose an offence known to law;
  2. the Authority should not be permitted to amend the charge because it would be unjust to allow the deficiencies in the charge to be rectified by amendment and would constitute a new charge being made after the expiry of the statutory limitation period; and
  3. if the Court found that the charge was valid, the charge separately alleged multiple contraventions against Kawasaki which did not “arise out of the same factual circumstances”, which is impermissible under the Work Health and Safety (National Uniform Legislation) Act 2011 (NT). Therefore, the Authority should be forced to elect which alleged contravention it wished to pursue.

The Authority argued that the charge against Kawasaki was valid, and if it was not, the Authority should be allowed to amend the charge to rectify any deficiencies. Relevantly, at the time of the proceedings, the Authority was out of time to lay any new charges.

Kawasaki’s application was successful in its entirety. The Court held the following:

  1. The charge was invalid because it failed to provide adequate particulars of the alleged offence.
  2. It would be unjust to Kawasaki to allow the charge to be amended as it would result in Kawasaki having to face a new charge made after the expiry of the statutory limitation period. In this regard, the Court rejected the Authority’s application to amend the charge to rectify the deficiencies and clarify the charge.
  3. Even if the charge against Kawasaki was valid, the alleged contraventions did not arise out of the same factual circumstances and should not have been alleged as a single charge against Kawasaki. Therefore, if the Court was to allow amendment, the Court would have nonetheless ordered the Authority to elect which allegation it wished to pursue against Kawasaki.

In relation to the charge laid against Whittens, the Court found that the charge was valid and granted the Authority’s application to amend the charge.

A copy of the decision can be accessed here.

The team at CDI Lawyers are very pleased with the decision dismissing the charge at such an early stage as it means that Kawasaki will not be required to defend an invalid charge in costly and lengthy legal proceedings.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader’s specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed. 

Key contacts:

Jay Hatten – Senior Associate
Christopher Rowden – Principal


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