SafeWork NSW v Advanced Roofing Sydney Pty Ltd - [2022] NSWDC 407

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Advanced Roofing Sydney Pty Ltd [2022] NSWDC 407
Hearing dates: 1 September 2022
Date of orders: 14 September 2022
Decision date: 14 September 2022
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Advanced Roofing Sydney Pty Ltd is convicted.
(2)   The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty.
(3)   Order Advanced Roofing Sydney Pty Ltd to pay a fine of $150,000.
(4) Order pursuant to s 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.
(5)   Order Advanced Roofing Sydney Pty Ltd to pay the prosecutor’s costs as agreed or assessed.
(6) Order pursuant to s 241 of the Work Health and Safety Act 2011 (NSW) that the defendant is to arrange for Mr Zazy to complete a Certificate IV in Work Health & Safety (Construction Industry Specific) by 16 February 2023.
(7) Order pursuant to s 238 of the Work Health and Safety Act 2011 (NSW) that the defendant is to prepare a documented plan setting out how Mr Zazy will comply with his duty to exercise due diligence to ensure Advanced Roofing complies with its obligations under the Work Health and Safety Act 2011 (NSW).
(8)   The defendant is to provide the prosecutor with evidence as to completion of the steps in orders (6) and (7) as soon as practicable, and at the latest by 16 February 2023.
(9)   Liberty to apply, in the event of a failure to comply with these orders.

Catchwords:
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury
SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty
COSTS – prosecution costs
EVIDENCE – how not to prepare an affidavit – defendant filed two affidavits on the afternoon before sentence hearing, in breach of Practice Note 16 timetable – 393 pages of unpaginated material – adding insult to injury – dozens of documents with no relevance to the sentence hearing were annexed to the affidavits – late service cast burden upon court and prosecutor – court time wasted – no utility in annexing dozens of new safety policies which had no relevance on sentence – only a handful of annexed material was relevant– do not just annexe everything in sight
OTHER – defendant conducted a business or undertaking that involved replacing metal roofing, walling and rainwater systems – two workers on roof carrying roof sheets – one worker stepped back and tripped on sandbag – worker fell through a black plastic sheet covering penetration – worker fell 8.42 metres to ground - failure to undertake adequate risk assessment – failure to have fall prevention device – failure to have Safe Work Method Statement that covered the hazard of penetrations – failure to…

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: [2022] NSWDC 407
Decision Date: 14 September 2022

CaseChat Overview and Summary

The matter of SafeWork NSW v Advanced Roofing Sydney Pty Ltd was heard in the Local Court of New South Wales. The prosecution was brought against the defendant, Advanced Roofing Sydney Pty Ltd, for breaches of work health and safety regulations that resulted in a worker falling 8.42 metres to the ground, sustaining injuries. The defendant was found to have failed in its duty to undertake an adequate risk assessment, lacked fall prevention devices, and did not have a Safe Work Method Statement covering the hazard of penetrations, nor did it provide appropriate information, instruction, and training. Furthermore, the defendant failed to prohibit work on the roof without adequate control measures for the hazard of penetrations.

The court was required to determine the objective seriousness of the offence, as well as the appropriate penalty, taking into account mitigating and aggravating factors. The defendant had pleaded guilty, which led to a reduction in the fine. The court also had to consider the capacity of the defendant to pay the penalty, as well as the need for general and specific deterrence. Additionally, the court needed to rule on the prosecution's application for costs.

The court found the offence to be of significant objective seriousness, given the risk of death or serious injury to the worker. The mitigating factor of the early guilty plea led to a 25% reduction in the fine. However, the court was heavily critical of the defendant's conduct in filing two lengthy and largely irrelevant affidavits at the last minute, which caused a significant burden on the court and wasted time. The court ordered a fine of $150,000, with 50% to be paid to the prosecutor, and mandated the defendant to pay the prosecutor's costs. Furthermore, the court ordered the defendant to ensure its director completed a Certificate IV in Work Health & Safety (Construction Industry Specific) and to prepare a documented plan for compliance with work health and safety obligations.

The court's final orders included a conviction against Advanced Roofing Sydney Pty Ltd, a fine of $150,000, payment of 50% of the fine to the prosecutor, and payment of the prosecutor's costs. The defendant was also required to ensure its director completed a Certificate IV in Work Health & Safety (Construction Industry Specific) and to prepare a documented plan for compliance with work health and safety obligations. The defendant was to provide evidence of compliance to the prosecutor by 16 February 2023, with liberty to apply in the event of non-compliance.

Orders

Orders of the court

(1) Advanced Roofing Sydney Pty Ltd is convicted.

(2) The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3) Order Advanced Roofing Sydney Pty Ltd to pay a fine of $150,000.

(4) Order pursuant to s 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.

(5) Order Advanced Roofing Sydney Pty Ltd to pay the prosecutor’s costs as agreed or assessed.

(6) Order pursuant to s 241 of the Work Health and Safety Act 2011 (NSW) that the defendant is to arrange for Mr Zazy to complete a Certificate IV in Work Health & Safety (Construction Industry Specific) by 16 February 2023.

(7) Order pursuant to s 238 of the Work Health and Safety Act 2011 (NSW) that the defendant is to prepare a documented plan setting out how Mr Zazy will comply with his duty to exercise due diligence to ensure Advanced Roofing complies with its obligations under the Work Health and Safety Act 2011 (NSW).

(8) The defendant is to provide the prosecutor with evidence as to completion of the steps in orders (6) and (7) as soon as practicable, and at the latest by 16 February 2023.

(9) Liberty to apply, in the event of a failure to comply with these orders.

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	SafeWork NSW v Advanced Roofing Sydney Pty Ltd [2022] NSWDC 407
Hearing dates:	1 September 2022
Date of orders:	14 September 2022
Decision date:	14 September 2022
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Advanced Roofing Sydney Pty Ltd is convicted. (2) The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Advanced Roofing Sydney Pty Ltd to pay a fine of $150,000. (4) Order pursuant to s 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. (5) Order Advanced Roofing Sydney Pty Ltd to pay the prosecutor’s costs as agreed or assessed. (6) Order pursuant to s 241 of the Work Health and Safety Act 2011 (NSW) that the defendant is to arrange for Mr Zazy to complete a Certificate IV in Work Health & Safety (Construction Industry Specific) by 16 February 2023. (7) Order pursuant to s 238 of the Work Health and Safety Act 2011 (NSW) that the defendant is to prepare a documented plan setting out how Mr Zazy will comply with his duty to exercise due diligence to ensure Advanced Roofing complies with its obligations under the Work Health and Safety Act 2011 (NSW). (8) The defendant is to provide the prosecutor with evidence as to completion of the steps in orders (6) and (7) as soon as practicable, and at the latest by 16 February 2023. (9) Liberty to apply, in the event of a failure to comply with these orders.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty COSTS – prosecution costs EVIDENCE – how not to prepare an affidavit – defendant filed two affidavits on the afternoon before sentence hearing, in breach of Practice Note 16 timetable – 393 pages of unpaginated material – adding insult to injury – dozens of documents with no relevance to the sentence hearing were annexed to the affidavits – late service cast burden upon court and prosecutor – court time wasted – no utility in annexing dozens of new safety policies which had no relevance on sentence – only a handful of annexed material was relevant– do not just annexe everything in sight OTHER – defendant conducted a business or undertaking that involved replacing metal roofing, walling and rainwater systems – two workers on roof carrying roof sheets – one worker stepped back and tripped on sandbag – worker fell through a black plastic sheet covering penetration – worker fell 8.42 metres to ground - failure to undertake adequate risk assessment – failure to have fall prevention device – failure to have Safe Work Method Statement that covered the hazard of penetrations – failure to…