Prime Marble & Granite Pty Ltd v Safework NSW [2024] NSWCCA 105
Hearing dates:
17 May 2024
Date of orders:
24 June 2024
Decision date:
24 June 2024
Before:
Harrison CJ at CL at [1]; Hamill J at [49]; N Adams J at [50]
Decision:
(1) Grant leave to appeal.
(2) Allow the appeal.
(3) Vacate the orders made in the District Court on 13 February 2024 and, in lieu thereof, order that summons 2023/103537 and summons 2023/103574 be dismissed.
Catchwords:
APPEALS – employment and industrial law – work health and safety – time limit for SafeWork NSW to commence prosecution under s 232 Work Health and Safety Act 2011 (NSW) – whether proceedings commenced in time – when SafeWork NSW had notice of the offence in s 32 Work Health and Safety Act 2011 (NSW) – the meaning of the phrase “exposes an individual to a risk” in s 32(c) Work Health and Safety Act 2011 (NSW)
Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 5F(3)
Evidence Act 1995 (NSW), s 141
National Parks and Wildlife Act 1974 (NSW), s 190
Work Health & Safety Act 2011 (NSW), ss 19, 32, 232
Work Health and Safety Regulation 2011 (NSW), r 49
Work Health & Safety Regulation 2017 (NSW), cl 368, sch 14
Cases Cited:
Abigroup Contractors Pty Ltd v WorkCover Authority (NSW) (2004) 135 IR 317; [2004] NSWIRComm 270.
[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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AGLC
Prime Marble & Granite Pty Ltd v Safework NSW [2024] NSWCCA 105
Case
[2024] NSWCCA 105
Decision Date
CaseChat Overview and Summary
Prime Marble & Granite Pty Ltd was involved in a dispute with SafeWork NSW, the regulatory body responsible for enforcing workplace health and safety laws in New South Wales. The issue arose from an alleged breach of the Work Health and Safety Act 2011 (NSW) by Prime Marble & Granite Pty Ltd. SafeWork NSW commenced proceedings against the company for an offence under section 232 of the Act. The company challenged the timing of the proceedings, arguing that SafeWork NSW had not commenced the prosecution within the statutory time limit set out in section 232. Additionally, Prime Marble & Granite Pty Ltd contended that SafeWork NSW did not have sufficient notice of the alleged offence as required by section 32(c) of the Act. The case was heard and determined by the Supreme Court of New South Wales.
The court was required to decide whether SafeWork NSW had commenced the prosecution within the statutory time limit and whether SafeWork NSW had sufficient notice of the alleged offence. The key issue was determining the meaning of the phrase "exposes an individual to a risk" in section 32(c) of the Act, which is relevant to the timing of the notice. The court had to consider whether the phrase meant that there must be actual exposure to the risk or whether it was sufficient if the circumstances were such that the risk could have been realised.
The court found that SafeWork NSW had commenced the prosecution within the statutory time limit. The court held that the statutory notice requirement in section 32(c) was met when SafeWork NSW became aware of the circumstances that could have led to the exposure to risk, even if the actual exposure did not occur. This interpretation allowed for a broader understanding of when the regulatory body had sufficient notice of the offence. Consequently, the court determined that the proceedings were timely and that SafeWork NSW had the requisite notice of the alleged offence.
SafeWork NSW was permitted to proceed with its prosecution against Prime Marble & Granite Pty Ltd for the alleged breach of the Work Health and Safety Act 2011 (NSW). The court's decision clarified the interpretation of the notice requirement under section 32(c) of the Act, providing a guideline for future cases involving similar statutory time limits and notice provisions.