SafeWork NSW v Coplex Construction Pty Ltd - [2023] NSWDC 165

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Coplex Construction Pty Ltd [2023] NSWDC 165
Hearing dates: 16 May 2023
Date of orders: 23 May 2023
Decision date: 23 May 2023
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Coplex Construction Pty Ltd is convicted.
(2)   The appropriate fine is $540,000 but that will be reduced by 25% to reflect the plea of guilty.
(3)   Order Coplex Construction Pty Ltd to pay a fine of $405,000.
(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 Coplex Construction 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 – fall from height – principal contractor on construction site – worker fell through open penetration – fatal injuries – failure to require subcontractor to securely cover penetration – failure to require subcontractor to install guard rails around penetration – failure to prevent workers from undertaking work until adequate protection installed – failure to develop, implement and enforce adequate Safe Work Method Statement – failure to verify subcontractor had developed, implemented and enforced adequate Safe Work Method Statement – failure to provide adequate supervision

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
Fines Act 1996 (NSW), ss 6, 122
Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 244
Work Health and Safety Regulation 2011 (NSW), cll 29, 78, 79, 291

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
DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1
Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
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 Ru Dong Li [2018] NSWDC 189
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92;…

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 165
Decision Date: 23 May 2023

CaseChat Overview and Summary

SafeWork NSW brought a prosecution against Coplex Construction Pty Ltd in relation to a workplace fatality. A worker fell through an open penetration on a construction site, resulting in fatal injuries. The dispute arose from the alleged failure of Coplex Construction Pty Ltd, as the principal contractor, to adequately safeguard the area where the incident occurred. The company was accused of not ensuring the subcontractor properly covered the penetration, installed guard rails, or provided adequate supervision, and of not developing, implementing, or enforcing a Safe Work Method Statement. The case was heard in the Local Court of New South Wales.

The court was required to determine whether Coplex Construction Pty Ltd breached its duty under work health and safety legislation by failing to provide a safe working environment, which resulted in the death of an employee. The court also needed to decide on the appropriate penalty, taking into account the objective seriousness of the offence, any mitigating or aggravating factors, and the effect of the guilty plea. Additionally, the court had to consider the capacity of the company to pay any fine imposed, and whether the company should be ordered to pay the prosecutor’s costs.

In delivering the judgment, the court found Coplex Construction Pty Ltd guilty of the charges. The court considered the severity of the breach, the failure to implement adequate safety measures, and the resulting fatality. The court took into account the plea of guilty as a mitigating factor, reducing the fine by 25%. The court concluded that a fine of $540,000 was appropriate, but after the reduction, the total penalty was set at $405,000. The court also ordered that 50% of the fine be paid to the prosecutor and that Coplex Construction Pty Ltd bear the prosecutor’s costs.

The court ordered that Coplex Construction Pty Ltd pay a fine of $405,000, with 50% of that amount to be paid to the prosecutor, and that the company also pay the prosecutor’s costs. The conviction and penalties reflect the seriousness of the breach and the need to uphold work health and safety standards.

Orders

Orders of the court

(1) Coplex Construction Pty Ltd is convicted.

(2) The appropriate fine is $540,000 but that will be reduced by 25% to reflect the plea of guilty.

(3) Order Coplex Construction Pty Ltd to pay a fine of $405,000.

(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 Coplex Construction 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

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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 Coplex Construction Pty Ltd [2023] NSWDC 165
Hearing dates:	16 May 2023
Date of orders:	23 May 2023
Decision date:	23 May 2023
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Coplex Construction Pty Ltd is convicted. (2) The appropriate fine is $540,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order Coplex Construction Pty Ltd to pay a fine of $405,000. (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 Coplex Construction 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 – fall from height – principal contractor on construction site – worker fell through open penetration – fatal injuries – failure to require subcontractor to securely cover penetration – failure to require subcontractor to install guard rails around penetration – failure to prevent workers from undertaking work until adequate protection installed – failure to develop, implement and enforce adequate Safe Work Method Statement – failure to verify subcontractor had developed, implemented and enforced adequate Safe Work Method Statement – failure to provide adequate supervision
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22 Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 244 Work Health and Safety Regulation 2011 (NSW), cll 29, 78, 79, 291
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 DPP v Gregory [2011] VSCA 145; (2011) 34 VR 1 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 Jimmy v The Queen [2010] NSWCCA 60; (2010) 77 NSWLR 540 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 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 Ru Dong Li [2018] NSWDC 189 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 WorkCover Authority (Inspector Howard) v Baulderstone Hornibrook Pty Limited [2009] NSWIRComm 92;…