SafeWork NSW v DIC Australia Pty Ltd - [2021] NSWDC 143

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v DIC Australia Pty Limited [2021] NSWDC 143
Hearing dates: 23 April 2021
Date of orders: 30 April 2021
Decision date: 30 April 2021
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1) DIC Australia Pty Limited is convicted.
(2) I take into account the Victim Impact Statement of Ms Rachel Tanner.
(3) The appropriate fine is $600,000 but that will be reduced by 25% to reflect the plea of guilty.
(4) Order DIC Australia Pty Limited to pay a fine of $450,000.
(5) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.
(6) Order DIC Australia Pty Limited to pay the prosecutor’s costs agreed in the amount of $45,000.

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 – defendant involved in the manufacture of ink products – blockages affected the operation of an ink holding tank and mill – onslow mixer and mill remained in operation while tank was being cleaned – access hatch was removed before anchor blade was electrically isolated – contractor’s leg became trapped between side of the tank and anchor blade – other workers suffered injuries when they entered the tank to assist – electrical isolation system inadequate – absence of an external isolator switch or emergency stop – confined space entry permit had only been partially completed – inadequate audit procedure to ensure job safety analysis and confined space entry permit were being utilised – safety documents on electrical configuration of the tank were inadequate

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 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, 274
Work Health and Safety Regulation 2017 (NSW), cll 66, 70, 74, 76

Cases Cited:
Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33
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…

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: [2021] NSWDC 143
Decision Date: 30 April 2021

CaseChat Overview and Summary

SafeWork NSW brought an action against DIC Australia Pty Ltd, a manufacturer of ink products, in the Local Court of New South Wales. The prosecution was initiated due to an incident where blockages in an ink holding tank and mill caused an onslow mixer and mill to remain in operation while the tank was being cleaned. The access hatch was removed before the anchor blade was electrically isolated, leading to a contractor's leg being trapped between the side of the tank and the anchor blade. Other workers suffered injuries when they entered the tank to assist the trapped worker. The electrical isolation system was inadequate, lacking an external isolator switch or emergency stop. The confined space entry permit had only been partially completed, and there was no adequate audit procedure to ensure job safety analysis and confined space entry permit were being utilised. Furthermore, safety documents regarding the electrical configuration of the tank were inadequate.

The court had to decide on the criminal liability of DIC Australia Pty Ltd, considering the duty of persons undertaking a business under work health and safety legislation. It also had to determine the appropriate penalty, taking into account various factors such as the objective seriousness of the offence, mitigating and aggravating factors, the plea of guilty, general and specific deterrence, and the capacity of the defendant to pay an appropriate penalty. Additionally, the court was required to consider the costs incurred by the prosecutor.

The court found DIC Australia Pty Ltd guilty, taking into account the serious nature of the incident, which resulted in injuries to workers. The court considered the plea of guilty as a mitigating factor and reduced the fine by 25%. The court assessed the objective seriousness of the offence, focusing on the potential for death or serious injury, the absence of adequate safety measures, and the impact on the victims. The court also considered the capacity of DIC Australia Pty Ltd to pay the penalty and ordered the company to pay a fine of $450,000, with 50% to be paid to the prosecutor. Furthermore, the court ordered DIC Australia Pty Ltd to pay the prosecutor's costs in the amount of $45,000.

Orders

Orders of the court

(1) DIC Australia Pty Limited is convicted.

(2) I take into account the Victim Impact Statement of Ms Rachel Tanner.

(3) The appropriate fine is $600,000 but that will be reduced by 25% to reflect the plea of guilty.

(4) Order DIC Australia Pty Limited to pay a fine of $450,000.

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

(6) Order DIC Australia Pty Limited to pay the prosecutor’s costs agreed in the amount of $45,000.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	SafeWork NSW v DIC Australia Pty Limited [2021] NSWDC 143
Hearing dates:	23 April 2021
Date of orders:	30 April 2021
Decision date:	30 April 2021
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) DIC Australia Pty Limited is convicted. (2) I take into account the Victim Impact Statement of Ms Rachel Tanner. (3) The appropriate fine is $600,000 but that will be reduced by 25% to reflect the plea of guilty. (4) Order DIC Australia Pty Limited to pay a fine of $450,000. (5) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. (6) Order DIC Australia Pty Limited to pay the prosecutor’s costs agreed in the amount of $45,000.
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 – defendant involved in the manufacture of ink products – blockages affected the operation of an ink holding tank and mill – onslow mixer and mill remained in operation while tank was being cleaned – access hatch was removed before anchor blade was electrically isolated – contractor’s leg became trapped between side of the tank and anchor blade – other workers suffered injuries when they entered the tank to assist – electrical isolation system inadequate – absence of an external isolator switch or emergency stop – confined space entry permit had only been partially completed – inadequate audit procedure to ensure job safety analysis and confined space entry permit were being utilised – safety documents on electrical configuration of the tank were inadequate
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 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, 274 Work Health and Safety Regulation 2017 (NSW), cll 66, 70, 74, 76
Cases Cited:	Attorney General for the State of New South Wales v DSF Constructions Pty Ltd [2019] NSWCCA 33 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…