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:
Solicitors:
D Jordan SC / P Barry (Appellant)
I Taylor SC / C Magee (Respondent)
DWF (Australia) (Appellant)
SafeWork NSW (Respondent)
File Number(s): 2018/57479 Decision under appeal
- Court or tribunal:
- District Court
- Jurisdiction:
- Criminal
- Citation:
- Date of Decision:
- 13 September 2019
- Before:
- Scotting DCJ
- File Number(s):
- 2018/56573; 2018/57479
Judgment
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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.
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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:
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For the reasons which appear below, these grounds…
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- Case
- [2020] NSWCCA 243
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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