Nicholson v GCMR Project Services Pty Ltd

[2024] QDC 58

DISTRICT COURT OF QUEENSLAND

CITATION:

Nicholson v GCMR Project Services Pty Ltd [2024] QDC 58

PARTIES:

NICHOLSON, Simon

(appellant)
v
GCMR Project Services Pty Ltd
(respondent)

FILENO/S:

D13/23

DIVISION:

Civil

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court at Beenleigh

DELIVEREDON:

26 April 2024

DELIVEREDAT:

District Court at Beenleigh

HEARINGDATE:

8 March 2024

JUDGES:

Chowdhury DCJ

ORDER:

Appeal dismissed.

CATCHWORDS:

APPEAL FROM MAGISTRATE – WORKPLACE HEALTH AND SAFETY PROSECUTION – SENTENCE – whether

Magistrate erred in reasons – whether fine inadequate.

LEGISLATION:

Justices Act 1886 (Qld), ss 222(1), 222(2)(c)

Penalties and Sentences Act 1992 (Qld), s 9

Work Health and Safety Act 2011 (Qld), ss 3(1)(a), 18, 19, 32

CASES:

Bennett Developments v Steward [2020] QDC 235

Guilfoyle v Ultra Floor (Aust) Pty Ltd & RGD Constructions Pty Ltd (Decision of Magistrate Courtney, 15 June 2020)

Nash v Silver City Drilling (NSW) Pty Ltd; Attorney-General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96

Reynolds v Orora Packaging Australia Pty Ltd [2019] QDC 31

Rongo v Commissioner of Police [2017] QDC 258

R v Robertson [2008] 185 A Crim R 441

Short v Lockshire Pty Ltd 165 QGIG 521 (20 November 2000)

Steward v Mac Plant Pty Ltd and Mac Farms Pty Ltd [2018] QDC 20

COUNSEL:

J.J. Underwood for the appellant.

R. Frigo for the respondent.

SOLICITORS:

Office of the Work Health and Safety Prosecutor for the appellant.

Frigo James Legal for the respondent.

Introduction

1. By way of notice filed on 19 April 2023, the appellant appeals against the sentence imposed by the Magistrates Court on the respondent for failing to comply with its health and safety duty – Category 2 contrary to s 32 of the Work Health and Safety Act 2011 (“WHSA”). The grounds of the appeal are that the learned Magistrate erred in imposing a sentence that was manifestly inadequate.

2. The hearing of the sentence proceedings in the Magistrates Court was on 24 February 2023. The Magistrate reserved her decision, and imposed sentence on 20 March 2023. She imposed a fine on the respondent of $30,000, and also ordered the respondent to pay court costs in the sum of $1,601.40. The costs were to be paid within three months, and the fine was to be paid within 12 months.

Relevant facts

1. An agreed statement of facts was tendered and marked Exhibit 1.

1. The respondent company operated a residential and commercial roofing business. The sole director is Simon Vincent.

2. Teys Australia Beenleigh Pty Ltd operated an abattoir. It engaged an entity called Donnan as the principal contractor to replace an existing roof at a building on the abattoir site. The construction project was undertaken in a number of stages, and work was being conducted on a number of buildings.

3. In turn, Donnan engaged the respondent company to undertake works which included removal of the COLORBOND roofing material, including insulation, and resheet the existing roof. The works also included removal and replacement of roof purlins.

1. On 16 March 2021, workers employed by the…