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 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:
Solicitors:
Mr M Scott (for the Prosecutor)
Mr C Magee (for the Defendant)
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
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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…
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- Case
- [2022] NSWDC 437
- Decision Date
CaseChat Overview and Summary
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
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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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