Orr v Burgess Earthmoving Pty Ltd

Burgess Earthmoving Pty Ltd, the operator of a hard rock quarry, was prosecuted by the Department of Planning, Industry and Environment (DPIPWE) for breaches of work health and safety regulations. The charges arose following an incident where flyrock ejected from a blast landed in the vicinity of both workers and members of the public. The prosecution alleged that the company failed to maintain a safe system of work for blasting operations, did not have a qualified Quarry Manager, provided inadequate instructions and training in relation to working with explosives, and thereby contravened their duty under the relevant legislation. The case was heard in the District Court of New South Wales.

The court had to determine the objective seriousness of the offending behaviour, taking into account various factors such as the potential for death or serious injury, the adequacy of safety measures, and the company's response to the incident. The court also had to consider mitigating factors such as the early plea of guilty, as well as any aggravating factors that might have exacerbated the risk to workers and the public. The objective was to ensure that the penalty reflected the gravity of the breach and served the purposes of general and specific deterrence, while also considering the company's capacity to pay.

In delivering its judgment, the court found that the company's failings were significant and had created a substantial risk of death or serious injury. Despite the mitigating factor of the early plea of guilty, the court found the overall conduct of the company to be egregious enough to warrant a substantial penalty. The fine was initially set at $180,000, but was reduced by 25% to $135,000 for the early plea. Considering the totality of the offending behaviour, the court further reduced the fine to $45,000. The court also ordered that 50% of the fine be paid to the prosecutor and that the company pay the agreed prosecutor’s costs of $27,500.

The court's orders included a conviction against Burgess Earthmoving Pty Ltd, a fine of $45,000, a requirement that 50% of the fine be paid to the prosecutor, and payment of agreed prosecutor’s costs amounting to $27,500. The total fines and costs amounted to $180,000 and $55,000 respectively.