DISTRICT COURT OF QUEENSLAND
CITATION:
Reynolds v Tailored Adventures Pty Ltd [2019] QDC 150
PARTIES:
STEVEN JOHN REYNOLDS
(appellant)v
TAILORED ADVENTURES PTY LTD
(respondent)FILE NO/S:
D5/19
DIVISION:
Civil
PROCEEDING:
222 Appeal
ORIGINATING COURT:
Magistrates Court at Beaudesert
DELIVERED ON:
21 August 2019
DELIVERED AT:
District Court at Beenleigh
HEARING DATE:
21 June 2019
JUDGE:
Chowdhury DCJ
ORDER:
1. Appeal allowed.
2. Fine varied to one of $50,000.00.
3. Other orders remain.
CATCHWORDS:
APPEAL FROM MAGISTRATE – BREACH OF HEALTH AND SAFETY DUTY – s 222 Justices Act 1886 – Failure to take into account relevant matters – Inadequacy of penalties
Justices Act 1886 (Qld), s 222, s 225
Work Health and Safety Act 2011 (Qld), s 8, s 19, s 21, s 32, s 275(3)
Work Health and Safety Act 2011 (NSW)
Penalties and Sentences Act 1992 (Qld), s 9
AG (NSW) v Ceerose Pty Ltd [2019] NSWCCA 35
AG (NSW) v DSF Constructions Pty Ltd [2019] NSWCCA 33
AG (NSW) v MacMahon Mining Services Pty Ltd [2019] NSWCCA 8
Bulga Underground Operations v Nash [2016] NSWCCA 37
Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71
Gartner v Brennan [2016] WASC 89
Hammond v Ralley [2014] QDC 263
Hickey v Chief Executive Officer of Customs; Hickey v Commissioner of Police [2017] QDC 27
Hurley v Commissioner of Queensland Police Service [2017] QDC 297
R v Goodwin; ex parte Attorney-General [2014] QCA 345
R v KB; R v JL; R v RJB [2011] NSWCCA 190
R v Nikolovska [2010] NSWCCA 169
Reynolds v Orora Packaging Australia Pty Ltd [2019] QDC 31
Steward v Mac Plant Pty Ltd & Mac Farms Pty Ltd [2018] QDC 20
Steward v Mac Plant Pty Ltd and Mac Farms [2018] QDC 20
Waltham Transfield Services (Australia) Pty Ltd [2007] ICQ 11
COUNSEL:
M Drysdale for the appellant
S Farrell for the respondent
SOLICITORS:
Office of the Work Health and Safety Prosecutor for the appellant
Barry.Nilsson for the respondent
On 19 February 2019, the respondent pleaded guilty in the Beaudesert Magistrates Court to the following offence:
“That on the 24th day of July 2001 at Mt Tamborine in the Magistrates Courts district of Beaudesert appointed under the Justices Act 1886, TAILORED ADVENTURES PTY LTD (ACN 164 083 309) being a person who held a health and safety duty under s 21 Work Health and Safety Act 2011, failed to comply with the duty contrary to s 32 of the said Act and the failure exposed individuals to a risk of serious injury.”
The complaint and summons set out a number of particulars.
The learned magistrate convicted the respondent and fined it $40,000. Professional costs were set at $1,800 and court costs at $95.80 were also ordered. A referral was made to the State Penalties and Enforcement Registry. A conviction was not recorded.
By way of an amended notice of appeal to a District Court judge, filed 17…
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- Case
- [2019] QDC 150
- Decision Date
CaseChat Overview and Summary
The court considered the arguments presented by the appellant's counsel, who submitted that the magistrate had not adequately appreciated the gravity of the breach and had failed to consider all relevant facts. The court referred to a folder of cases provided by counsel, including Bulga Underground Operations v Nash and AG (NSW) v DSF Constructions Pty Ltd, which contained relevant precedents on the issue of sentencing. The court found that the magistrate had indeed failed to properly assess the seriousness of the breach and had not considered all relevant matters in determining the penalty. The court concluded that the penalty imposed was inadequate given the circumstances of the offence and decided to vary the fine to $50,000.00.
The court allowed the appeal, varied the fine to $50,000.00, and upheld the other orders of the magistrate. This decision highlights the importance of carefully considering all relevant factors and the objective seriousness of the offence when imposing penalties for breaches of health and safety duties.
Orders
Orders of the court
1. Appeal allowed.
2. Fine varied to one of $50,000.00.
3. Other orders remain.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
In the course of oral submissions before me counsel for the appellant submitted that the magistrate failed to appreciate the objective seriousness of the offending conduct and failed to have regard to the elements that constituted the matters of fact that gave rise to the offence. A folder containing a significant number of cases was handed up to me at the commencement of the hearing. One of the cases in the folder is Bulga Underground Operations v Nash [2016] NSWCCA 37. At [158] in the judgment of the court, reference was made to the following passage in R v KB; R v JL; R v RJB [2011] NSWCCA 190, in the judgment of Bathurst CJ (with whom Buddin and Harrison JJ agreed): Another case in the folder is AG (NSW) v DSF Constructions Pty Ltd [2019] NSW CCA 33. That appeal was heard on 11 April 2018 and judgment handed down on 26 February 2019. It is important to note that that case was one of three cases heard at the same time, by the same court: Beazley P, Fullerton J and McCallum J (as she then was). The other two cases are AG (NSW) v MacMahon Mining Services Pty Ltd [2019] NSWCCA 8 and AG (NSW) v Ceerose Pty Ltd [2019] NSWCCA 35. All three cases were appeals brought significantly out of time by the Attorney General for New South Wales against fines imposed for a variety of breaches of the Work Health and Safety Act2011 (NSW). In fact, two of the cases arise out of the same facts: Ceerose Pty Ltd engaged DSF Constructions Pty Ltd to install steelworks including a skylight structure at a construction site in Camperdown. Ceerose Pty Ltd was the principal contractor on the site. The incident occurred on 13 April 2013 when a worker was fatally injured when a steel skylight structure, weighing approximately 1 tonne, fell onto him from a height of approximately 11 metres. In DSF Constructions Pty Ltd, Beazley P said the following: In that case, Beazley P, with whom McCallum J agreed, considered that the sentencing judge did not err in finding that the objective seriousness of the offence was in the mid-range. Fullerton J dissented. In MacMahon Mining Services Pty Ltd, supra, McCallum J, who dissented in the overall outcome of the appeal, said the following in her judgment: Further at [70] of her judgment, McCallum J said this: In Ceerose Pty Ltd, supra, Fullerton J, with whom Beazley P agreed, said the following: McCallum J, who dissented on the outcome of the appeal, said the following: On this last point, similar comments were made by his Honour Judge McGill SC in Reynolds v Orora Packaging Australia Pty Ltd [2019] QDC 31, where his Honour said this in respect of the prosecution before the magistrate in that case relying on a document from a departmental website: Due respect should be given to decisions of the New South Wales Court of Criminal Appeal, and indeed other appellate courts around the country, especially where the Act is part of a national scheme of uniform legislation concerned with furthering work safety. However, as his Honour Judge McGill SC observed in Orora Packaging Australia Pty Ltd, supra, the New South Wales sentencing legislation is different from the Penalties and Sentences Act 1992 in Queensland.