SafeWork NSW v Bay Timber Manufacturing Pty Ltd - [2024] NSWDC 585

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Bay Timber Manufacturing Pty Ltd [2024] NSWDC 585
Hearing dates: 28 November 2024
Date of orders: 12 December 2024
Decision date: 12 December 2024
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Bay Timber Manufacturing Pty Ltd was convicted on 28 November 2024.
(2)   The appropriate fine is $400,000 but that will be reduced by 25% to reflect the early plea of guilty.
(3)   Order Bay Timber Manufacturing Pty Ltd to pay a fine of $300,000.
(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.
(5)   Order Bay Timber Manufacturing Pty Ltd to pay the prosecutor’s costs.

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
OTHER – steel frame manufacturer – overhead travelling crane moving steel coils – 950 kilogram coil fell onto worker – unauthorised use of plant – inadequate training, instruction and supervision – failure to isolate plant controller – worker was a vulnerable minor

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E, Pt 3 Div 2
Fines Act 1996 (NSW), ss 6, 122
Work Health and Safety Act 2011 (NSW), ss 3, 19, 32
Work Health and Safety Regulation 2017 (NSW) cl 203, Pt 3.1

Cases Cited:
Baumer v R [1988] HCA 67; (1988) 166 CLR 51
Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
BW v R [2011] NSWCCA 176
Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Wilkinson (No. 5) [2009] NSWSC 432
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:
SafeWork NSW Code of Practice, Managing the Risks of Plant in the Workplace, August 2019
Safe Work Australia, Bridge and Gantry Cranes Information Sheet, December 2015

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Bay Timber Manufacturing Pty Ltd (Defendant)
Representation:
Counsel:
M Scott (Prosecutor)
J Alderson (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
Holman Webb Lawyers (Defendant)

File Number(s): 2023/244207
Publication restriction: Nil

Judgment

The defendant, Bay Timber Manufacturing Pty Ltd (Bay Timber) manufactures steel and timber frames. On 6 December 2021 Ms Elizabeth Scudds, a labourer, was operating the overhead…

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: [2024] NSWDC 585
Decision Date: 12 December 2024

CaseChat Overview and Summary

SafeWork NSW prosecuted Bay Timber Manufacturing Pty Ltd for breaches of work health and safety regulations, which resulted in a serious injury to an employee. The dispute centred on the company's failure to ensure the safety of its workers, specifically the incident where a 950 kilogram steel coil fell from an overhead travelling crane and struck a minor worker. The case was heard in the Local Court of New South Wales.

The legal issues before the court included whether the company had fulfilled its duty under the work health and safety legislation to protect its employees from risks that could cause death or serious injury. The court had to consider the circumstances surrounding the incident, including the alleged unauthorised use of the crane, inadequate training, lack of proper instruction and supervision, and failure to isolate the plant controller. The court also needed to determine the appropriate penalty, taking into account the objective seriousness of the breach, the mitigating and aggravating factors, the early plea of guilty, and the need for general and specific deterrence.

The court found that Bay Timber Manufacturing Pty Ltd had indeed breached its duty under the work health and safety legislation. The company had failed to provide adequate training, instruction, and supervision to its employees, and it did not isolate the plant controller, which contributed to the incident. The court emphasised the vulnerability of the injured worker, who was a minor, as an aggravating factor. However, the court also recognised the early plea of guilty as a mitigating factor and reduced the fine by 25% accordingly. The court concluded that a fine of $300,000 was appropriate, with 50% of that amount to be paid to the prosecutor, and ordered the company to pay the prosecutor's costs.

The court ordered that Bay Timber Manufacturing Pty Ltd was to pay a fine of $300,000, with 50% of that amount to be paid to the prosecutor. Additionally, the company was ordered to pay the prosecutor's costs.

Orders

Orders of the court

(1) Bay Timber Manufacturing Pty Ltd was convicted on 28 November 2024.

(2) The appropriate fine is $400,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3) Order Bay Timber Manufacturing Pty Ltd to pay a fine of $300,000.

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

(5) Order Bay Timber Manufacturing Pty Ltd to pay the prosecutor’s costs.

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

Full text does not contain this section.

Medium Neutral Citation:	SafeWork NSW v Bay Timber Manufacturing Pty Ltd [2024] NSWDC 585
Hearing dates:	28 November 2024
Date of orders:	12 December 2024
Decision date:	12 December 2024
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Bay Timber Manufacturing Pty Ltd was convicted on 28 November 2024. (2) The appropriate fine is $400,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Bay Timber Manufacturing Pty Ltd to pay a fine of $300,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. (5) Order Bay Timber Manufacturing Pty Ltd to pay the prosecutor’s costs.
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 OTHER – steel frame manufacturer – overhead travelling crane moving steel coils – 950 kilogram coil fell onto worker – unauthorised use of plant – inadequate training, instruction and supervision – failure to isolate plant controller – worker was a vulnerable minor
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E, Pt 3 Div 2 Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 19, 32 Work Health and Safety Regulation 2017 (NSW) cl 203, Pt 3.1
Cases Cited:	Baumer v R [1988] HCA 67; (1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] NSWSC 432 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
Texts Cited:	SafeWork NSW Code of Practice, Managing the Risks of Plant in the Workplace, August 2019 Safe Work Australia, Bridge and Gantry Cranes Information Sheet, December 2015
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Bay Timber Manufacturing Pty Ltd (Defendant)
Representation:	Counsel: M Scott (Prosecutor) J Alderson (Defendant) Solicitors: Department of Customer Service (Prosecutor) Holman Webb Lawyers (Defendant)
File Number(s):	2023/244207
Publication restriction:	Nil