SafeWork NSW v Empire Contracting Pty Ltd - [2022] NSWDC 437

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Empire Contracting Pty Ltd [2022] NSWDC 437
Hearing dates: 20 September 2022
Date of orders: 30 September 2022
Decision date: 30 September 2022
Jurisdiction: Criminal
Before: Strathdee DCJ
Decision:
(1)   The defendant is convicted.
(2)   The appropriate fine for the offence is $400,000.00, and that will be reduced by 25% to reflect a plea of guilty.
(3)   Accordingly, I order the defendant to pay a fine of $300,000.00.
(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.
(5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs, as agreed or assessed.

Catchwords:
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Fines Act 1996 (NSW)
Work Health and Safety Act 2011 (NSW)
Work Health and Safety Regulation 2017 (NSW)

Cases Cited:
Bulga Underground Operations v Nash (2016) 93 NSWLR 338
Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610
Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464
Markarian v The Queen (2005) 228 CLR 357
Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117
Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
Orbit Drilling v The Queen (2012) 35 VR 399
R v Cage [2006] NSWCCA 304
R v MA [2004] NSWCCA 92
R v Miria [2009] NSWCCA 68
R v MMK [2006] NSWCCA 272
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Youkhana [2004] NSWCCA 412
SafeWork NSW v Advanced Roofing Sydney Pty Ltd [2022] NSWDC 407
SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398
SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632
SafeWork NSW v Poletti Corporation [2019] NSWDC 491
Veen v R (No. 2) (1988) 164 CLR 465
WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151

Texts Cited:
Code of Practice – Managing the Risk of Falls at Workplaces (August 2019)
Safe Work on Roofs Information Sheet (2016)

Category: Principal judgment
Parties: SafeWork NSW (Prosecutor)
Empire Contracting Pty Ltd (Defendant)
Representation:
Counsel:
Mr M Scott (for the Prosecutor)
Mr C Magee (for the Defendant)
Solicitors:
Mr H Bell, Department of Customer Services (for the Prosecutor)
Mr M Hope, Holding Redlich Lawyers (for the Defendant)

File Number(s): 2021/342848

Judgment

INTRODUCTION

By an Amended Summons filed on 18 July 2022 SafeWork NSW (‘the prosecutor’) charged Empire Contracting Pty Ltd (‘the defendant’) with a breach of the Work Health and Safety Act 2011 (NSW) (‘the Act’). The Amended Summons pleaded that…

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: [2022] NSWDC 437
Decision Date: 30 September 2022

CaseChat Overview and Summary

SafeWork NSW brought proceedings against Empire Contracting Pty Ltd in the Local Court of New South Wales, alleging breaches of work health and safety legislation. The dispute centred on whether Empire Contracting Pty Ltd had failed to discharge its duty of care to its employees, leading to a risk of death or serious injury. SafeWork NSW claimed that Empire Contracting Pty Ltd contravened specific statutory provisions by not providing adequate safety measures and failing to ensure the safety of its workers.

The court was tasked with determining whether Empire Contracting Pty Ltd had indeed breached the relevant work health and safety provisions and, if so, what penalties were appropriate. The legal issues included whether the evidence presented by SafeWork NSW was sufficient to prove the alleged breaches and whether Empire Contracting Pty Ltd had acted negligently or recklessly. The court also had to consider the principles of sentencing and the statutory guidelines for fines and penalties in such cases.

In reaching its decision, the court found that Empire Contracting Pty Ltd had failed to comply with the statutory obligations concerning workplace safety. The evidence provided by SafeWork NSW was deemed sufficient to establish the breaches. The court acknowledged Empire Contracting Pty Ltd's plea of guilty and the absence of prior convictions, which were considered in determining the penalty. The court imposed a fine of $300,000.00, reflecting a 25% reduction for the guilty plea, and ordered that 50% of this fine be paid to the prosecutor. Additionally, Empire Contracting Pty Ltd was required to pay the prosecutor's costs as agreed or assessed.

The final orders of the court included the conviction of Empire Contracting Pty Ltd, a fine of $300,000.00, a requirement to pay 50% of the fine to the prosecutor, and an obligation to cover the prosecutor's costs.

Orders

Orders of the court

(1) The defendant is convicted.

(2) The appropriate fine for the offence is $400,000.00, and that will be reduced by 25% to reflect a plea of guilty.

(3) Accordingly, I order the defendant to pay a fine of $300,000.00.

(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

(5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs, as agreed or assessed.

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 Empire Contracting Pty Ltd [2022] NSWDC 437
Hearing dates:	20 September 2022
Date of orders:	30 September 2022
Decision date:	30 September 2022
Jurisdiction:	Criminal
Before:	Strathdee DCJ
Decision:	(1) The defendant is convicted. (2) The appropriate fine for the offence is $400,000.00, and that will be reduced by 25% to reflect a plea of guilty. (3) Accordingly, I order the defendant to pay a fine of $300,000.00. (4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. (5) Pursuant to s 257B of the Criminal Procedure Act 1986 (NSW), the defendant is to pay the prosecutor’s costs, as agreed or assessed.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2017 (NSW)
Cases Cited:	Bulga Underground Operations v Nash (2016) 93 NSWLR 338 Capral Aluminium Ltd v WorkCover Authority (NSW) (2000) 49 NSWLR 610 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Kirk v Industrial Court (NSW) (2010) 239 CLR 531 Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 Markarian v The Queen (2005) 228 CLR 357 Morrison v Powercoal Pty Ltd (No. 3) (2005) 147 IR 117 Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 Orbit Drilling v The Queen (2012) 35 VR 399 R v Cage [2006] NSWCCA 304 R v MA [2004] NSWCCA 92 R v Miria [2009] NSWCCA 68 R v MMK [2006] NSWCCA 272 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412 SafeWork NSW v Advanced Roofing Sydney Pty Ltd [2022] NSWDC 407 SafeWork NSW v Grandcity Constructions Pty Ltd [2018] NSWDC 398 SafeWork NSW v HCM Building Pty Ltd [2019] NSWDC 632 SafeWork NSW v Poletti Corporation [2019] NSWDC 491 Veen v R (No. 2) (1988) 164 CLR 465 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 WorkCover Authority (NSW) v Sarjame Storage Pty Ltd [2015] NSWDC 151
Texts Cited:	Code of Practice – Managing the Risk of Falls at Workplaces (August 2019) Safe Work on Roofs Information Sheet (2016)
Category:	Principal judgment
Parties:	SafeWork NSW (Prosecutor) Empire Contracting Pty Ltd (Defendant)
Representation:	Counsel: Mr M Scott (for the Prosecutor) Mr C Magee (for the Defendant) Solicitors: Mr H Bell, Department of Customer Services (for the Prosecutor) Mr M Hope, Holding Redlich Lawyers (for the Defendant)
File Number(s):	2021/342848