DISTRICT COURT OF QUEENSLAND
CITATION:
Ghost Gully Produce Pty Ltd v Guilfoyle [2022] QDC 75
PARTIES:
In DC 29/2021
GHOST GULLY PRODUCE PTY LTD
ACN 104 732 890(appellant)
v
AARON JOHN GUILFOYLE(respondent)
In DC 38/2021
AARON JOHN GUILFOYLE
(appellant)
v
GHOST GULLY PRODUCE PTY LTD
ACN 104 732 890
(respondent)FILE NO/S:
DC 29/2021
DC 38/2021PROCEEDING:
Appeals pursuant to s 222 Justices Act 1886
ORIGINATING COURT:
Magistrates Court at Toowoomba
DELIVERED ON:
31 March 2022
DELIVERED AT:
Brisbane
HEARING DATE:
14 February 2022
JUDGE:
Judge AJ Rafter SC
ORDERS:
In DC 29/2021:
1. Appeal dismissed.
2. The appellant is to pay the respondent’s costs fixed at $1800.
In DC 38/2021:
1. Appeal allowed.
2. Set aside the fine of $80,000 and instead order that the respondent be fined $100,000.
3. Confirm the order that the conviction not be recorded.
4. Direct that the Registrar give particulars of the fine to the State Penalties Enforcement Registry for registration pursuant to s 34(2A) State Penalties Enforcement Act 1999.
CATCHWORDS:
CRIMINAL LAW (QLD) – APPEALS – rehearing on the evidence before the Magistrates Court pursuant to s 222 Justices Act 1886 (Qld) – where the company was conducting a produce and farming business – where a worker, employed by a contractor, was performing scaffolding work on the roof of a shed – where powerlines were adjacent to the roof of the shed – where the worker suffered electric shock and serious burns injuries – where the company was charged with an offence under s 40C Electrical Safety Act 2002 (Qld) – where the magistrate was satisfied that each element of the offence was established – where the company was found guilty of the offence – where the magistrate imposed a fine of $80,000 and ordered that a conviction not be recorded
CRIMINAL LAW (QLD) – APPEAL AGAINST CONVICTION – where the company has appealed against the finding of guilt – whether the magistrate erred in law in finding the company held the relevant electrical safety duty – whether, if such duty was held, the magistrate erred in finding that the company had breached its duty – whether the magistrate made findings that were not open
CRIMINAL LAW (QLD) – APPEAL AGAINST SENTENCE – where the Work Health and Safety Prosecutor has appealed against the sentence – whether the magistrate erred in failing to conclude that the offending by the company was more serious than that of the employer of the injured worker – whether the sentence imposed was manifestly inadequate
Electrical Safety Act 2002 (Qld) ss 4, 5, 10, 27, 27B, 28, 30, 40A, 40C, 122C, sch 2
Electrical Safety Regulation 2013 (Qld) s 68
Justices Act 1886 (Qld) ss 148A, 222, 223
Penalties and Sentences Act 1992 (Qld) ss 5, 9, 13, 48
State Penalties Enforcement Act (Qld) s 54
Work Health and Safety Act 2011 (Qld) s 32Attorney-General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
Baiada Poultry Pty Ltd v…
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- Case
- [2022] QDC 75
- Decision Date
CaseChat Overview and Summary
The court examined whether the company owed an electrical safety duty and if it had breached that duty. It was determined that the company, as a business conducting activities involving work near exposed electrical parts, did indeed hold such a duty under the Electrical Safety Act. The court found no error in the magistrate's conclusion that the company had breached this duty. Regarding the sentence, the court found that the magistrate had erred in concluding that the culpability of the company was similar to the employer of the injured worker, and that the penalty imposed was manifestly inadequate. The appeal against conviction was dismissed, and the appeal against sentence was allowed. The fine was increased to $100,000, with the conviction remaining unrecorded. The company was ordered to pay costs of $1800.
Orders
Orders of the court
In DC 29/2021:
1. Appeal dismissed.
2. The appellant is to pay the respondent’s costs fixed at $1800.
In DC 38/2021:
1. Appeal allowed.
2. Set aside the fine of $80,000 and instead order that the respondent be fined $100,000.
3. Confirm the order that the conviction not be recorded.
4. Direct that the Registrar give particulars of the fine to the State Penalties Enforcement Registry for registration pursuant to s 34(2A) State Penalties Enforcement Act 1999.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Ghost Gully Produce submitted that it was not clear why the electrician did not insist on the cherry picker that had been brought on site being utilised.[30] It was submitted that the Ghost Gully Produce employee who pointed out the ladder did not speak with any authority on its behalf.[31]Consideration[30]Outline of Submissions for Ghost Gully Produce filed 9 December 2021 at para 41.[31]Outline of Submissions for Ghost Gully Produce filed 9 December 2021 at para 42.Electrical safety duty Ghost Gully Produce contends that as a mere “consumer” of electricity it cannot be subject to any duty imposed by s 30(1) Electrical Safety Act. The submission cannot be accepted. The duty imposed by s 30(1) is upon a person conducting a business to ensure that the business is conducted in a way that is electrically safe. Where the business includes the performance of work, whether or not electrical work, which involves contact with or being near to exposed parts, the duty involves ensuring that the persons performing the work are electrically safe.[32][32]Electrical Safety Act2002 s 30(1)(2)(c). Ms Samuelsen agreed that the electricity produced by the solar panels was used in connection with the business.[33] The shed was part of Ghost Gully Produce’s premises and was used in connection with its business. The fact that Mr Madden was engaged in installing edge protection to enable the solar panels to be repaired did not mean that he was not engaged in the work of the business.[33]Transcript of proceedings 9 August 2021 p 5 ll 5-10. The powerlines were uninsulated 11,000 volt lines. Accordingly, they were an “exposed part”.[34] Mr Madden was working on the shed which was within three metres of the uninsulated powerlines and was therefore working near exposed parts. [34]Electrical Safety Act2002 schedule 2, definition of “exposed part”. The fact that other persons also held duties under s 30(1) is irrelevant because s 27B provides that more than one person can have the same duty. The argument for Ghost Gully Produce that it cannot have a duty under s 30(1) because its core business did not involve electrical work cannot be accepted. The argument overlooks the fact that s 30(2)(b) provides for a duty where a person’s business or undertaking includes the performance of electrical work. The duty outlined in s 30(2)(c) applies where a person’s business or undertaking includes the performance of work, whether or not it is electrical work. The fact that s 68 Electrical Safety Regulation 2013 imposes a duty in relation to overhead or underground electrical lines does not mean that Ghost Gully Produce did not have a duty under s 30(1). The offence created by s 40C contains additional elements including that the failure exposes an individual to a risk of death or serious injury or illness. The magistrate was correct to conclude that the business of Ghost Gully Produce involved Mr Madden working near exposed parts. It therefore had a duty to ensure that persons performing the work were electrically safe.Breach of duty