SafeWork NSW v Deemah Stone Pty Ltd

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Deemah Stone Pty Ltd [2025] NSWDC 248
Hearing dates: 1 July 2025
Date of orders: 10 July 2025
Decision date: 10 July 2025
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1) Dismiss the Notice of Motion filed by the defendant on 16 January 2025.
(2) Reserve the costs of the Notice of Motion, to be dealt with at the conclusion of these proceedings.

Catchwords:
PROCEDURAL – Motion to dismiss because the proceedings were brought out of time – past alleged offences were observed outside limitation period – new, distinct and different alleged offences were observed within limitation period – defendants are not immunised from risks and breaches of duty because they are guilty of an earlier alleged offence – object of the WHS Act would be defeated – present proceedings brought within limitation period

Legislation Cited:
Work Health and Safety Act 2011 (NSW), ss 3, 17, 19 32, 33, 47, 232
Work Health and Safety Regulation 2017 (NSW), cll 346, 368

Cases Cited:
Prime Marble & Granite Pty Ltd v SafeWork NSW [2024] NSWCCA 105

Category: Procedural rulings
Parties: SafeWork NSW (Prosecutor)
Deemah Stone Pty Ltd (Defendant)
Representation:
Counsel:
P English / S Populin (Prosecutor)
P Barry (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
Lionheart Lawyers (Defendant)

File Number(s): 2023/432502

JUDGMENT

Introduction

Deemah Stone Pty Ltd (Deemah) operated a stonemasonry business which included the fabrication and installation of manufactured and natural stone products. Workers were required to cut, grind or polish stone products at the business premises of Deemah. This work created airborne respirable crystalline silica (RCS).
In 2019 and 2020 inspectors from the regulator SafeWork NSW (SafeWork) attended the Deemah premises and observed the working conditions. As a result of those two visits Improvement Notices were served upon Deemah. Deemah complied with those Improvement Notices. SafeWork inspectors visited the premises again in 2022. Three further Improvement Notices were served.
By a Summons filed on 29 November 2023 SafeWork has prosecuted Deemah alleging a breach of its health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (the WHS Act). The Summons alleges that Deemah failed to comply with that duty contrary to s 33 of the WHS Act. The Summons alleges that the time of the offence was from 20 February 2021 to 21 February 2022. Thus SafeWork has alleged the commission of a continuing offence.
The primary duty of care prescribed by s 19 of the WHS Act is as follows:

19   Primary duty of care
(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—
(a)  workers engaged, or caused to be engaged by the person, and
(b)  workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.
(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable,…

CaseChat Overview and Summary

SafeWork NSW commenced proceedings against Deemah Stone Pty Ltd in the NSW Civil and Administrative Tribunal, alleging breaches of workplace health and safety laws. The dispute centred on whether the tribunal had jurisdiction to hear the case, given that some of the alleged breaches were observed outside the statutory limitation period. Deemah Stone sought to dismiss the proceedings on the ground that the tribunal lacked jurisdiction due to the out-of-time observations. The tribunal was required to determine whether the presence of some out-of-time observations could negate jurisdiction over the entirety of the proceedings, or if the tribunal could exercise jurisdiction over the in-time observations, which were new, distinct, and different from those outside the limitation period.

The tribunal considered the purpose of the statutory limitation provisions and the nature of workplace health and safety laws. It noted that the object of the Work Health and Safety Act 2011 (NSW) was to ensure that risks to health and safety are managed effectively, and that employers are held accountable for breaches of duty. The tribunal held that the presence of some out-of-time observations did not immunise the defendants from liability for new, distinct, and different alleged offences observed within the limitation period. To allow the defendants to escape liability on this basis would defeat the object of the WHS Act, which is to hold employers accountable for ongoing risks and breaches of duty. The tribunal found that the proceedings were brought within the limitation period in respect of the in-time observations, and therefore had jurisdiction to hear the case in relation to those observations.

The tribunal dismissed the motion to dismiss the proceedings, holding that it had jurisdiction to hear the case in respect of the in-time observations. The tribunal also reserved the costs of the motion to be dealt with at the conclusion of the proceedings. This decision reinforces the principle that the presence of some out-of-time observations does not immunise employers from liability for new, distinct, and different alleged offences observed within the limitation period. Employers must continue to take steps to manage health and safety risks and comply with their duties under the WHS Act, even if they have been guilty of earlier alleged offences.

Orders of the court

(1) Dismiss the Notice of Motion filed by the defendant on 16 January 2025.

(2) Reserve the costs of the Notice of Motion, to be dealt with at the conclusion of these proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	SafeWork NSW v Deemah Stone Pty Ltd [2025] NSWDC 248
Hearing dates:	1 July 2025
Date of orders:	10 July 2025
Decision date:	10 July 2025
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Dismiss the Notice of Motion filed by the defendant on 16 January 2025. (2) Reserve the costs of the Notice of Motion, to be dealt with at the conclusion of these proceedings.
Catchwords:	PROCEDURAL – Motion to dismiss because the proceedings were brought out of time – past alleged offences were observed outside limitation period – new, distinct and different alleged offences were observed within limitation period – defendants are not immunised from risks and breaches of duty because they are guilty of an earlier alleged offence – object of the WHS Act would be defeated – present proceedings brought within limitation period
Legislation Cited:	Work Health and Safety Act 2011 (NSW), ss 3, 17, 19 32, 33, 47, 232 Work Health and Safety Regulation 2017 (NSW), cll 346, 368
Cases Cited:	Prime Marble & Granite Pty Ltd v SafeWork NSW [2024] NSWCCA 105
Category:	Procedural rulings
Parties:	SafeWork NSW (Prosecutor) Deemah Stone Pty Ltd (Defendant)
Representation:	Counsel: P English / S Populin (Prosecutor) P Barry (Defendant) Solicitors: Department of Customer Service (Prosecutor) Lionheart Lawyers (Defendant)
File Number(s):	2023/432502