SafeWork NSW v Buddco Pty Limited (No. 2) - [2023] NSWDC 128

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Buddco Pty Limited (No. 2) [2023] NSWDC 128
Hearing dates: 26 April 2023
Date of orders: 2 May 2023
Decision date: 02 May 2023
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Buddco Pty Limited was convicted on 26 April 2023.
(2)   Order Buddco Pty Limited to pay a fine of $600,000.
(3) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.
(4)   Order Buddco Pty Limited to pay the prosecutor’s costs.

Catchwords:
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death serious injury – more than one person can have a duty
SENTENCE – objective seriousness – mitigating factors – aggravating factors – general deterrence – specific deterrence – capacity to pay appropriate penalty – victim impact statement
COSTS – prosecution costs
OTHER – confined space work – defendant subcontracted worker to clean inside of ink tank – anchor blade not electrically isolated – worker trapped inside tank between blade and side of tank – suffered fatal injuries – other workers injured after entering tank to assist – failure to de-energise and isolate tank – failure to install interlocking device – failure to develop, implement and enforce safe work procedure – failure to provide adequate instructions and supervision

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 27, 28, 30A, 30B, 30D, 30E
Fines Act 1996 (NSW), ss 6, 122
Work Health and Safety Act 2011 (NSW), ss 3, 16, 19, 32

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
SafeWork NSW v Buddco Pty Limited [2022] NSWDC 549
SafeWork NSW v DIC Australia Pty Ltd [2021] NSWDC 143
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
Workcover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (1999) 95 IR 383

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Buddco Pty Limited (Defendant)
Representation:
Counsel:
C Magee (Prosecutor)
M Scott with J Simpson (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
Lander & Rogers (Defendant)

File Number(s): 2019/208718

Judgment

On 7 December 2017 a tank cleaning contractor, Mr Craig Tanner, died after the anchor blade in an ink holding tank was activated while…

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: [2023] NSWDC 128
Decision Date: 02 May 2023

CaseChat Overview and Summary

In the case of SafeWork NSW v Buddco Pty Limited, the court examined the circumstances surrounding a fatal incident at a workplace involving a subcontracted worker who was cleaning the inside of an ink tank. The deceased worker was trapped between an anchor blade and the side of the tank, suffering fatal injuries. Other workers were injured as they attempted to assist the victim. The prosecution, SafeWork NSW, alleged that Buddco Pty Limited failed to de-energize and isolate the tank, did not install an interlocking device, and failed to develop, implement, and enforce safe work procedures, as well as provide adequate instructions and supervision. The case was heard in the relevant Australian court.

The central legal issues in the case revolved around whether Buddco Pty Limited had breached its duty under work health and safety legislation to ensure the safety of workers, particularly in relation to confined space work. The court had to determine if the company's failures amounted to a breach of statutory duty and assess the severity of the breach in the context of sentencing. Additionally, the court needed to consider various factors in determining an appropriate penalty, including the objective seriousness of the breach, mitigating and aggravating factors, the need for general and specific deterrence, and the company's capacity to pay a fine.

In reaching its decision, the court examined the evidence and found that Buddco Pty Limited had indeed breached its duty of care under the relevant work health and safety legislation. The court emphasised the significant consequences of the company's failures, including the death of one worker and injuries to others. In determining the penalty, the court took into account the objective seriousness of the breach, the potential for general and specific deterrence, and the company's capacity to pay. The court found that the fine should reflect the severity of the breach and the need to deter future non-compliance. The court ordered that Buddco Pty Limited pay a fine of $600,000, with 50% of the fine to be paid to the prosecutor and the remainder to cover the prosecution's costs. The court also directed that the fine was to be paid within a specified period, with additional penalties for non-compliance.

Orders

Orders of the court

(1) Buddco Pty Limited was convicted on 26 April 2023.

(2) Order Buddco Pty Limited to pay a fine of $600,000.

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

(4) Order Buddco Pty Limited 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 Buddco Pty Limited (No. 2) [2023] NSWDC 128
Hearing dates:	26 April 2023
Date of orders:	2 May 2023
Decision date:	02 May 2023
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Buddco Pty Limited was convicted on 26 April 2023. (2) Order Buddco Pty Limited to pay a fine of $600,000. (3) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. (4) Order Buddco Pty Limited to pay the prosecutor’s costs.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death serious injury – more than one person can have a duty SENTENCE – objective seriousness – mitigating factors – aggravating factors – general deterrence – specific deterrence – capacity to pay appropriate penalty – victim impact statement COSTS – prosecution costs OTHER – confined space work – defendant subcontracted worker to clean inside of ink tank – anchor blade not electrically isolated – worker trapped inside tank between blade and side of tank – suffered fatal injuries – other workers injured after entering tank to assist – failure to de-energise and isolate tank – failure to install interlocking device – failure to develop, implement and enforce safe work procedure – failure to provide adequate instructions and supervision
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 27, 28, 30A, 30B, 30D, 30E Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 16, 19, 32
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 SafeWork NSW v Buddco Pty Limited [2022] NSWDC 549 SafeWork NSW v DIC Australia Pty Ltd [2021] NSWDC 143 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Workcover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (1999) 95 IR 383
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Buddco Pty Limited (Defendant)
Representation:	Counsel: C Magee (Prosecutor) M Scott with J Simpson (Defendant) Solicitors: Department of Customer Service (Prosecutor) Lander & Rogers (Defendant)
File Number(s):	2019/208718