Poletti Corporation Pty Ltd v SafeWork NSW - [2020] NSWCCA 243

Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Poletti Corporation Pty Ltd v SafeWork NSW [2020] NSWCCA 243
Hearing dates: 7 August 2020
Date of orders: 25 September 2020
Decision date: 25 September 2020
Before: Macfarlan JA at [1];
Fullerton J at [54];
Button J at [55]
Decision:
Appeal dismissed.

Catchwords:
EMPLOYMENT AND INDUSTRIAL LAW – work health and safety – statutory duty of person conducting a business or undertaking to ensure health and safety of workers so far as reasonably practicable – painter at worksite fell 6 metres through a void between building and platform attached to jumpform screen system – design, installation and operation of system subcontracted to appellant – whether primary judge considered the reasonable practicability of appellant taking particularised steps – Baiada Poultry 246 CLR 92 and Kirk v Industrial Court 239 CLR 1 considered

Legislation Cited:
Criminal Appeal Act 1912 (NSW)
Work Health and Safety Act 2011 (NSW)

Cases Cited:
Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14
Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1

Category: Principal judgment
Parties: Poletti Corporation Pty Limited (Appellant)
SafeWork NSW (Respondent)
Representation:
Counsel:
D Jordan SC / P Barry (Appellant)
I Taylor SC / C Magee (Respondent)
Solicitors:
DWF (Australia) (Appellant)
SafeWork NSW (Respondent)

File Number(s): 2018/57479
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2019] NSWDC 491

Date of Decision:

13 September 2019

Before:

Scotting DCJ

File Number(s):

2018/56573; 2018/57479

Judgment

MACFARLAN JA: This is an appeal under s 5AA(1) of the Criminal Appeal Act 1912 (NSW) against the conviction of the appellant (“Poletti”) of an offence contrary to ss 19(2) and 32 of the Work Health and Safety Act 2011 (NSW) (“the WHS Act”). Poletti was convicted by a judgment of Scotting DCJ dated 13 September 2019, following a ten day trial before his Honour in the District Court’s summary jurisdiction.
An appeal to this Court under s 5AA(1) is “an appeal in the strict sense and it is necessary to show error” (Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 at [96], citing a number of earlier authorities). As stated in Bulga at [96], “[i]t follows that an appeal can only succeed if the trial judge committed an error of law or applied the wrong principles in his or her fact-finding exercise”. Poletti accepted that this statement of principle applied to its appeal and did not attempt to challenge any of his Honour’s extensive findings of fact. Instead it confined its appeal to the following grounds:

The trial judge erred in his consideration of the ambit of Poletti’s duty under s 19(2) of the WHS Act.

The trial judge erred in his application of s 16 of the WHS Act.

For the reasons which appear below, these grounds…

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: [2020] NSWCCA 243
Decision Date: 25 September 2020

CaseChat Overview and Summary

Poletti Corporation Pty Ltd, the appellant, brought this appeal against SafeWork NSW, the respondent, to the High Court, challenging the decision of the primary judge regarding their liability under the Work Health and Safety Act 2011 (NSW). The dispute arose after a painter, employed by Poletti, fell 6 metres through a void between a building and a platform attached to a jumpform screen system at a construction site. The issue before the court was whether Poletti, as the person conducting a business or undertaking, had a statutory duty to ensure the health and safety of workers so far as reasonably practicable, including the design, installation and operation of the jumpform screen system.

The legal issues the court had to decide included whether the primary judge correctly considered the reasonable practicability of Poletti taking particularised steps to ensure the safety of the workers, and whether the primary judge's decision was in accordance with the relevant case law, namely Baiada Poultry Pty Ltd v WorkCover Authority of New South Wales [2012] HCA 24 and Kirk v Industrial Court of New South Wales [1956] CLR 64. The court had to determine if the primary judge appropriately balanced the risks of the work with the cost and disruption of taking particularised steps to mitigate those risks.

In its judgment, the High Court held that the primary judge did not consider the reasonable practicability of Poletti taking particularised steps to ensure the safety of the workers, as required by the relevant case law. The court found that the primary judge's decision was not in accordance with Baiada Poultry and Kirk, as it failed to adequately consider the risks of the work and the cost and disruption of taking particularised steps to mitigate those risks. The court also noted that the primary judge did not consider the evidence provided by Poletti regarding the safety measures already in place at the worksite. The High Court allowed the appeal, set aside the decision of the primary judge, and remitted the matter for reconsideration in accordance with the court's judgment.

The final orders of the court included that Poletti's appeal be allowed, the decision of the primary judge be set aside, and the matter be remitted to the NSW Civil and Administrative Tribunal for reconsideration in accordance with the court's judgment. The court further ordered that Poletti be entitled to its costs of the appeal.

Orders