Edstein Creative Pty Ltd v SafeWork NSW

[2025] NSWCCA 69

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Edstein Creative Pty Ltd v SafeWork NSW [2025] NSWCCA 69

Hearing dates:

2 May 2025

Date of orders:

12 May 2025

Decision date:

12 May 2025

Before:

Ball JA at [1];
Yehia J at [27];
Coleman J at [28]

Decision:

Application for leave to appeal under r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) is refused.

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – work health and safety – where employee may have contracted silicosis as a result of carrying out work for the Applicant – where SafeWork NSW brought prosecution for an offence under s 32 of the Work Health and Safety Act 2011 arising from breach of health and safety duty under s 19(1) – where Applicant plead guilty in District Court – where Applicant now contends SafeWork commenced prosecution outside of time limit under s 232 of the Work Health and Safety Act 2011 (NSW) – whether prosecution brought in time – when did SafeWork have sufficient information to infer the offence had been committed – prosecution commenced in time

APPEALS – appeal out of time – whether leave should be granted to bring appeal out of time – appeal futile – leave refused

Legislation Cited:

Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5

Work Health and Safety Act 2011 (NSW), ss 19, 30, 32, 232

Cases Cited:

Prime Marble & Granite Pty Ltd v Safework NSW [2024] NSWCCA 105

SafeWork NSW v Edstein Creative Pty Ltd [2024] NSWDC 178

Category:

Principal judgment

Parties:

Edstein Creative Pty Ltd (Applicant)
SafeWork NSW (Respondent)

Representation:

Counsel:
JL Glissan AM ESM KC with P Barry (Applicant)
R Ranken SC with C Magee (Respondent)

Solicitors:
Macpherson Kelley (Applicant)
Department of Customer Service (Respondent)

File Number(s):

2021/181676

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2024] NSWDC 178

Date of Decision:

17 May 2024

Before:

Strathdee DCJ

File Number(s):

2021/181676

JUDGMENT

1. BALL JA: The applicant, Edstein Creative Pty Ltd, seeks leave pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to appeal out of time against the conviction, following a plea of guilty, and fine of $375,000 imposed on it by Strathdee DCJ on 17 May 2024 for an offence against s 32 of the Work Health and Safety Act 2011 (NSW) (the WHS Act) arising from a contravention of s 19(1) of the WHS Act (the Offence). Relevantly, s 19(1) of the WHS Act imposes an obligation on a person conducting a business to “ensure, so far as is reasonably practicable, the health and safety of … workers engaged, or caused to be engaged by the person”. Section 32 of the WHS Act relevantly provides:

Failure to comply with health and safety duty—Category 2

A person commits a Category 2 offence if—

(a)    the person has a health and safety duty, and

(b)    the person fails to comply with that duty, and

(c)    the failure exposes an individual to a risk of death or serious injury or illness.

…

2. “Health and safety duty” is defined in s 30 to include a duty imposed by s 19(1).

3. Section 232(1) of the WHS Act provides:

(1)    Proceedings for an offence against this Act may be brought within the latest of the following periods to occur—

(a)   within 2 years after the offence first comes to the notice of the regulator,

(b)   within 1 year after a coronial report was made or a coronial inquiry or inquest ended, if it appeared from the report or the proceedings at the inquiry or inquest that an offence had been committed against this Act,

(c)   if a WHS undertaking has been given in relation to the offence, within 6 months after—

(i)   the WHS undertaking is contravened, or

(ii)   it comes to the notice of the regulator that the WHS undertaking has been contravened, or

(iii)    the regulator has agreed under section 221 to the withdrawal of the WHS undertaking.

4. The appeal raises two questions. The first is whether leave should be given to appeal out of time. The second is whether the circumstances warrant the conviction being set aside notwithstanding the plea of guilty. It is convenient to address the second of these questions first, since the answer to that question has a significant bearing on the answer to the first.

Background

5. Edstein Creative carries on business of fabricating and installing a range of stone and manufactured stone products in residential and commercial buildings in the Newcastle and Hunter Regions from premises at Taree, Sandgate and Point Clare. Although the products were manufactured and cut at those premises, installers were often required to undertake further trimming or cutting of the manufactured stone products off-site.

6. On 24 June 2021, SafeWork NSW, the relevant regulator, commenced proceedings in the District Court of New South Wales against Edstein Creative for the Offence. The proceedings were commenced following the receipt by SafeWork NSW on 26 June 2019 of an adverse health monitoring report provided to it by Edstein Creative disclosing that test results indicated that one of its employees, Mr Nicholas Twentyman, may have contracted silicosis as a result of carrying out his work for Edstein Creative. Mr Twentyman had worked for Edstein Creative since 2012 as an installer and subsequently as a supervisor of installers of manufactured stone products.

7. The summons included the following description of the Offence:

In the period between 1 January 2012 to 1 November 2018, in the Newcastle and Hunter regions, in New South Wales, Edstein Creative Pty Limited (the defendant), being a person conducting a business or undertaking who had a health and safety duty under section 19(1) of the Work Health and Safety Act 2011 (the Act) to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, did fail to comply with that duty and the failure to comply with that duty exposed a worker, in particular Nicholas Twentyman, to a risk of serious illness contrary to section 32 of the Act.

Date of offence:	1 January 2012 to 1 November 2018
Place of offence:	Newcastle and Hunter regions, New South Wales
Particulars:	Attached as ‘Annexure A’

8. By a notice of motion filed on 4 February 2022, Edstein Creative sought an order that the summons be dismissed or permanently stayed on the ground that “the summons alleges that the offence occurred in the period between 1 January 2012 to 1 November 2018, which is contrary to the limitation contained in section 232 of [the WHS Act]”. In the alternative, the notice of motion sought an order that the summons be stayed until SafeWork NSW properly particularised when it was alleged that the offence was committed, where it was alleged the offence was committed and the identity of each worker said to have been exposed to the pleaded risk. The notice of motion was supported by an affidavit affirmed on 21 February 2022 by Edstein Creative’s solicitor, Mr Alan Girle, who gave evidence which was said to demonstrate that the Offence first came to the notice of SafeWork NSW more than 2 years before the summons was filed.

9. The notice of motion was heard by Russell SC DCJ on 11 April 2022. His Honour delivered judgment on 14 April 2022 dismissing the application that the summons be dismissed or permanently stayed but ordering that the summons be stayed until such time as SafeWork NSW provided the particulars sought by Edstein Creative.

10. In rejecting the application that the summons be dismissed or permanently stayed, his Honour dealt with the matters raised by Mr Girle. It is not necessary to deal with each of those matters in this judgment. They generally involved occasions on which representatives of SafeWork NSW had inspected or had attended Edstein Creative’s premises and had not raised any issue, or had been complimentary, about the systems of work adopted by it. On one occasion, in October 2018, SafeWork NSW arranged to film and photograph several of Edstein Creative’s workers as part of a promotional campaign. On other occasions between 2018 and 2021 the University of Western Sydney and SafeWork NSW had conducted sampling and analysis of silica in the air at “the Applicant Defendant’s facility” (to quote from Mr Girle’s affidavit), and produced reports recording their results. As will become apparent, on appeal Edstein Creative placed particular emphasis on one of those reports, which was dated 3 October 2018, and which was prepared by Mr Christian Madden (the Madden Report). Russell SC DCJ concluded that the principal difficulty with all this evidence was that it related to the practices followed at Edstein Creative’s premises and there was no evidence that SafeWork NSW observed or was told anything about the conditions under which installers, such as Mr Twentyman, worked off-site.

11. Russell SC DCJ also referred to an email dated 16 May 2019 that Edstein Creative had sent SafeWork NSW in which it had referred to two unnamed workers who had come from Queensland where they had been exposed to high levels of Respirable Crystalline Silica (RCS) and who had early stage silicosis. Edstein Creative wanted to know what could be done to keep the workers employed. As his Honour observed, there was no suggestion that the workers had contracted silicosis while working for Edstein Creative.

12. On 11 December 2023, SafeWork NSW filed an amended summons. On the same day the parties filed what was described as an amended statement of agreed facts. The amended summons addressed the inadequate particularisation of the offence about which Edstein Creative had complained.

13. Following the filing of the amended summons, Edstein Creative pleaded guilty. The formal plea was entered on 1 May 2024 and the sentence was imposed on 17 May 2024. Strathdee DCJ held that an appropriate fine was $500,000 which was reduced by 25% to reflect the plea of guilty: see SafeWork NSW v Edstein Creative Pty Ltd [2024] NSWDC 178. Edstein Creative does not challenge the appropriateness of that fine assuming the offence is made out.

Edstein Creative’s case on appeal

14. Relying on this Court’s decision in Prime Marble & Granite Pty Ltd v Safework NSW [2024] NSWCCA 105, Edstein Creative submits that it was not necessary for the two year limitation period to commence to run that SafeWork NSW know all the elements of the Offence. Rather, what was necessary was that SafeWork NSW know sufficient information from which it could reasonably be inferred that the Offence had been committed. As Harrison CJ at CL (with whom Hamill and N Adams JJ agreed) explained:

18 An offence first comes to the notice of the regulator when it has information sufficient to give reasonable grounds for a belief that the offence has been committed: Witheyman v Van Riet (2008) 185 A Crim R 492; [2008] QCA 168 at [8]-[9]. It is not necessary that the regulator was actually in possession of evidence capable of indicating that the offence had been committed, although possession of evidence will be sufficient to establish the reasonable grounds test. Reasonable grounds requires the existence of facts which are sufficient to induce a belief in the existence of those grounds in a reasonable person: George v Rocket (1990) 170 CLR 104; [1990] HCA 26 at 112. It is not necessary for the person actually to hold the belief.

19   It is not necessary for the regulator to have notice of the identity of the offender: Witheyman at [15]; Somerville at [63]. Nor is it necessary, in the context of the prosecution of an offence contrary to s 32 of the Act, for the regulator to have notice of the identity of any particular worker put at risk of serious illness because of a breach of the duty under s 19(1) of the Act.

20   In order to have notice of an offence, the regulator must have information as to both the essential legal elements and the essential factual particulars of that offence. …

15. The high-water mark of Edstein Creative’s case is that SafeWork NSW knew of the contents of the Madden Report, which related to the Taree premises. Edstein Creative submits that SafeWork NSW was aware from that report that Edstein Creative employed approximately 50 staff at that site, that of those employees, approximately 29 worked on the factory floor and “[a] further 7 staff undertake the field installations”, which included “modification and repair of stone products”. The report contained the following discussion of the testing that Mr Madden had undertaken:

The results of the personal dust monitoring indicate that none of the workers were exposed to excessive concentrations of respirable dust during the three (3) days of monitoring, with the average respirable dust concentrations across all SEGs [similar exposure group] less than 10% of the recommended OEL [occupational exposure limit] of 1 mg/m³. However, 11 of the respirable dust samples were found to contain respirable crystalline silica above the level of detection, including a monumental employee with an exposure that was 88% of the WES [workplace exposure standards], and exceeded the recommended action limit for control of 0.05mg/m³. The high exposure in the monumental section influences the estimated 95^th percentile, giving a figure of 0.11mg/m³. The 95^th percentile is the estimated measure, below which, 95% of the monumental SEG exposure are likely to occur. Because it is higher than the WES, this indicates that workers in this area are overexposed to RCS, based on the conditions and activities on the day of monitoring, and that controls are required to reduce worker exposure to RCS.

…

The workers in the monumental section currently wear respiratory protection equipment (RPE) depending on the activity (sandblasting and cleaning). However, RPE is the last line, and least effective form of exposure control. It is recommended that if this practice continues given estimated 95^th percentile of 0.11mg/m³ (WES 0.10mg/m³) when undertaking cleaning activities are undertaken in the area. Workers currently using RPE at Edstein need to be fit tested and trained in the appropriate use, storage and maintenance of RPE, as specified in AS/NZS1716.

16. The report also observed that:

The facility manufactures stone bench tops and graveside monuments from natural and manufactured stone, which can contain greater than 90% crystalline silica (Work Safe Victoria 2017). The factory production floor…can involve 30 employees undertaking manual and mechanised processes on any one day. A raw material can travel through many production stages before becoming a saleable product thus reducing time and handling distances between these stages … supports business competitiveness, and also limiting the finishing in the field activities such as cutting and polish where there is a greater potential for uncontrolled RCS exposures. Internal efficiencies are gained by the condensing of production processes and staffing, which may exaggerate other safety and health issues such as air quality and noise.

17. In addition, the report recommended that “an assessment of all field practices be undertaken to develop and implement best practice techniques for dust suppression of field activities.”

18. Taking these comments together, Edstein Creative submits that SafeWork NSW was on notice that (1) Edstein Creative engaged 7 installers who worked off-site and who engaged in cutting and polishing; (2) in at least some parts of Edstein Creative’s operations “the respirable dust samples were found to contain respirable crystalline silica above the level of detection, including a monumental employee who had an exposure that was 88% of WES, and exceeded the recommended action limit for control of 0.05 mg/m³”; (3) no monitoring had been done of field practices, although there was a greater potential for uncontrolled RCS exposure resulting from finishing in the field activities such as cutting and polishing; and (4) it had been recommended that an assessment of all field practices be undertaken. Edstein Creative submits that that was sufficient to establish reasonable grounds for a belief that the offence had been committed.

Consideration

19. In my opinion, that submission must be rejected for several reasons.

20. First, it is not correct to say that the Madden Report provided reasonable grounds for believing that one or more of Edstein Creative’s workers were exposed to a risk of death or serious injury. At most, the report established those workers working in the “monumental” section of the factory were working in an environment where the dust samples contained levels of RCS that were above the recommended level. The report also indicated that those employees wore RPE. Although the report stated that that was “the last line, and least effective form of exposure control”, there was nothing in the report to suggest that that line of defence together with the other measures that were taken were not sufficient to avoid the risk of death or serious injury or disease.

21. Second, there was no reason to think that the risk of death or serious injury or disease resulting from inhaling RCS was the same or similar for installers working off-site as they were for workers working in the monumental section of the factory at Taree. Plainly, the nature of the risks the workers were exposed to was affected by the activities of the workers and the conditions under which those activities were undertaken. There was no reason to think that the activities engaged in by installers or the conditions under which they undertook those activities were the same or similar to those of workers in the monumental section. Consequently, notice of what occurred at the Taree factory was not notice of what occurred off-site.

22. Third, although it was not necessary for SafeWork NSW to know the conditions under which Mr Twentyman worked, it was necessary for it to know that the working conditions of installers engaged by Edstein Creative such as Mr Twentyman were such that in carrying out their tasks as installers they were exposed to levels of RCS that put them at risk of death or serious injury or disease. SafeWork NSW was not put on notice of that fact simply because it knew that installers on occasions were engaged in the modification and repair of stone products off-site. At a minimum, SafeWork NSW would need to know the frequency and conditions under which they engaged in those activities, the levels of RCS to which they were exposed as a result and whether that level of exposure was sufficient to expose them to the risk of a disease such as silicosis. SafeWork NSW knew none of those things.

23. Similarly, it was not sufficient that SafeWork was aware of the possibility that installers may have engaged in activities in conditions that exposed them to excessive levels of RCS or that a recommendation had been made that their level of exposure should be investigated. Knowledge of the possibility of the commission of an offence is not knowledge of information sufficient to give reasonable grounds for a belief that the offence has been committed.

24. It was not suggested that any of the other material referred to by Mr Girle in his affidavit took the position any further.

Conclusion

25. It follows from what has been said that SafeWork NSW did not become aware of the offence until it received the adverse health monitoring report from Edstein Creative NSW on 26 June 2019. It commenced proceedings within two years of that date and consequently was within time, with the result that the proposed appeal is futile.

26. Accordingly, leave to appeal should be refused.

27. YEHIA J: I have had the advantage of reading the reasons for judgment of Ball JA in draft. I agree with the order proposed by his Honour and with his Honour’s reasons.

28. COLEMAN J: I agree with Ball JA.

**********

Decision last updated: 12 May 2025