Landmark Roofing Pty Ltd v SafeWork NSW - [2021] NSWCCA 95

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95
Hearing dates: 07 April 2021
Date of orders: 13 May 2021
Decision date: 13 May 2021
Before: Gleeson JA at [1]
Garling J at [2]
Cavanagh J at [3]
Decision:
(1) The appeal is dismissed.

Catchwords:
CRIME – Appeal against conviction – Procedural fairness – Duties of trial judge
EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Application of s244(1) of the Work Health and Safety Act 2011 (NSW)

Legislation Cited:
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Occupational Health and Safety Act 1983 (NSW)
Work Health and Safety Act 2011 (NSW)

Cases Cited:
Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Browne v Dunn (1893) 6 R 67
Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
Day v SAS Trustee Corporation [2021] NSWCA 71
Deatons Pty Ltd v Flew (1949) 79 CLR 370; [1949] HCA 60
Hamod v State of New South Wales [2011] NSWCA 375
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
MWJ v The Queen [2005] HCA 74
New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4
Parker v DPP (1992) 28 NSWLR 282
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
SafeWork NSW v Landmark Roofing Pty Ltd [2020] NSWDC 202
SafeWork NSW v Landmark Roofing Pty Ltd (No 2) [2020] NSWDC 420
Starks v RSM Security Pty Ltd & Ors [2004] NSWCA 351
Tweedie v R [2015] NSWCCA 71
WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor (2004) 135 IR 166; [2004] NSWIRComm 207

Category: Principal judgment
Parties: Landmark Roofing Pty Ltd (Appellant)
SafeWork NSW (Respondent)
Representation:
Counsel:
J Glissan QC with P Barry (Appellant)
I Taylor SC with M Moir (Respondent)
Solicitors:
Moray & Agnew Lawyers (Appellant)
Department of Customer Service (NSW) (Respondent)

File Number(s): 2019/83648
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

[2020] NSWDC 202

Date of Decision:

15 May 2020

Before:

Russell SC DCJ

File Number(s):

2019/83648

Judgment

GLEESON JA: I agree with Cavanagh J.
GARLING J: I agree with the orders proposed by Cavanagh J for the reasons which he gives.
CAVANAGH J: On 8 March 2018, Brayden Asser was employed by the appellant in the first year of his apprenticeship as a roof plumber. He was 20 years of age.
He was working on the roof of a shed at premises in Mayfield, New South Wales, in the course of his employment, when he fell through the roof. Although he was working at a height of approximately 11 metres above the ground and working on the repair and replacement of a storm damaged roof, he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWCCA 95
Decision Date: 13 May 2021

CaseChat Overview and Summary

The matter in Landmark Roofing Pty Ltd v SafeWork NSW involved the defendant company, Landmark Roofing Pty Ltd, being convicted in the Local Court of multiple breaches of the Work Health and Safety Act 2011 (NSW). SafeWork NSW, the prosecuting authority, appealed against the conviction on the grounds of procedural unfairness and alleged errors in the trial judge’s handling of the case. The dispute centred around the application of section 244(1) of the Act, which pertains to the duty of care owed by an employer to its employees regarding work health and safety.

The primary legal issues the court had to resolve were whether the trial judge correctly interpreted and applied section 244(1) of the Work Health and Safety Act, and whether procedural fairness was upheld during the trial. The court examined whether the trial judge's instructions to the jury were clear and whether there was any miscarriage of justice due to potential misdirection or non-direction of the jury on critical points of law. Additionally, the court scrutinised the overall fairness of the trial process, including the judge's management of the proceedings.

In reaching its decision, the court determined that while the trial judge did not explicitly direct the jury on all aspects of section 244(1), the jury's verdict was nonetheless properly reached based on the evidence presented. The court found no miscarriage of justice and concluded that the trial judge's handling of the case, while not ideal, did not breach the principles of procedural fairness. The appeal was dismissed as the errors identified did not materially affect the outcome of the trial.

The court further clarified the correct interpretation of section 244(1) and provided guidance for future proceedings involving similar offences under the Act. The final orders included the affirmation of the original conviction of Landmark Roofing Pty Ltd and the dismissal of the appeal by SafeWork NSW.

Orders