SafeWork NSW v Freyssinet Australia Pty Ltd - [2018] NSWDC 66

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Freyssinet Australia Pty Ltd [2018] NSWDC 66
Hearing dates: 16/02/2018, 23/02/2018
Date of orders: 29 March 2018
Decision date: 29 March 2018
Before: Kearns DCJ
Decision:
The defendant is convicted. The defendant is fined the sum of $80,000 with a moiety to the prosecutor. The prosecutor is to pay the defendant’s costs wasted by reason of the inclusion in the Summons and later withdrawal of the allegation relating to safe work method statement. Otherwise the defendant is to pay the prosecutor’s costs. The orders for costs are that the party liable is to pay such costs as may be agreed or otherwise assessed.
Addendum 10 May 2018 - Pursuant to the slip rule the orders made in paragraph 79 of the judgment of this Court on 29 March 2018 are amended as follows:
The defendant is to pay the prosecutor’s costs (excluding the prosecutor’s costs attributable to the inclusion in the summons and later withdrawal of the allegation relating to the safe work method statement), less any sum attributable to defendant’s costs attributable to the withdrawn allegation.
Catchwords: CRIMINAL LAW – prosecution – work health and safety – risk of death or serious injury – fall from stairwell edge
SENTENCE – objective seriousness – aggravating factor – general deterrence – specific deterrence – mitigating factors – attitude to safety before the incident – actions since the incident – Fines Act – parity – penalty – whether s 239 undertaking appropriate
COSTS – amendments to Summons
Legislation Cited: Work Health and Safety Act 2011; Crimes (Sentencing Procedure) Act 1999; Fines Act 1996; Crimes Act 1900
Cases Cited: Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96; Page v Walco Hoist Rentals Pty Ltd (No. 2) [2000] NSWIRComm 39; Nesmat Pty Ltd v WorkCover Authority (NSW) (1998) 87 IR 312; SafeWork NSW v Karimbla Constructions Services NSW Pty Ltd [2017] NSWDC 68; Postigliano v The Queen (1996-7) 189 CLR 295; SafeWork NSW v ProjectCorp Australia Pty Limited [2017] NSWDC 169; R v Ingrassia (1997) 41 NSWLR 447; Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37; Butters v R [2010] NSWCCA 1
Category: Sentence
Parties: SafeWork New South Wales (prosecutor); Freyssinet Australia Pty Ltd (defendant)
Representation:
Counsel: Mr I Taylor SC with Mrs E James appeared for the prosecutor; Mr A Moses SC with Mr D O’Neil and Ms J Alderson appeared for the defendant
Solicitors: SafeWork NSW Legal Services (prosecutor); HWL Ebsworth Lawyers (defendant)

File Number(s): 2016/44806

Judgment

On 27 October 2017, I found Freyssinet guilty of a Category 2 offence under s 32 of the Work Health and Safety Act 2011 (the Act). The matter now falls for sentence. The maximum penalty for the offence is a fine of $1,500,000.
The facts on which the sentence is to be based are set out in large measure in the reasons I published on 27 October 2017. I take them…

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: [2018] NSWDC 66
Decision Date: 29 March 2018

CaseChat Overview and Summary

In the matter of SafeWork NSW versus Freyssinet Australia Pty Ltd, the case was heard in the District Court of New South Wales. The dispute centred around a prosecution for work health and safety offences, specifically regarding the risk of death or serious injury due to a fall from the edge of a stairwell. The defendant, Freyssinet Australia Pty Ltd, was accused of breaching occupational health and safety regulations, leading to a prosecution by SafeWork NSW. The legal issues at hand required the court to consider the objective seriousness of the offence, the presence of any aggravating or mitigating factors, and the appropriateness of the penalty imposed in light of the defendant's attitude towards safety and subsequent actions. Additionally, the court had to address the matter of costs, particularly those associated with amendments to the Summons.

The court deliberated on the objective seriousness of the offence, acknowledging the potential for severe injury or death from the incident. It considered various factors, including the risk posed, the company's attitude towards safety prior to the incident, and any measures taken post-incident. The court found that the risk was significant, as it involved a substantial chance of death or serious injury, which constituted an aggravating factor. Despite this, the court took into account mitigating factors such as the defendant's actions following the incident, which demonstrated a commitment to improving safety measures and preventing future occurrences. The penalty imposed needed to reflect both the seriousness of the offence and the overall deterrence value for the defendant and the wider industry.

After thorough deliberation, the court found the defendant guilty and imposed a fine of $80,000, with half to be paid to the prosecutor. The court also addressed the costs, ruling that the defendant was to bear the majority of the costs, with some exceptions related to withdrawn allegations. The court ensured that the penalty was proportionate under the relevant statutes and took into account the need for general and specific deterrence, as well as the company's demonstrated efforts to enhance safety protocols. The final orders mandated the defendant to pay the majority of the costs, with specific provisions for costs related to the withdrawn allegations.

Orders

Orders of the court

The defendant is convicted. The defendant is fined the sum of $80,000 with a moiety to the prosecutor. The prosecutor is to pay the defendant’s costs wasted by reason of the inclusion in the Summons and later withdrawal of the allegation relating to safe work method statement. Otherwise the defendant is to pay the prosecutor’s costs. The orders for costs are that the party liable is to pay such costs as may be agreed or otherwise assessed.

Addendum 10 May 2018 - Pursuant to the slip rule the orders made in paragraph 79 of the judgment of this Court on 29 March 2018 are amended as follows:

The defendant is to pay the prosecutor’s costs (excluding the prosecutor’s costs attributable to the inclusion in the summons and later withdrawal of the allegation relating to the safe work method statement), less any sum attributable to defendant’s costs attributable to the withdrawn allegation.

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 Freyssinet Australia Pty Ltd [2018] NSWDC 66
Hearing dates:	16/02/2018, 23/02/2018
Date of orders:	29 March 2018
Decision date:	29 March 2018
Before:	Kearns DCJ
Decision:	The defendant is convicted. The defendant is fined the sum of $80,000 with a moiety to the prosecutor. The prosecutor is to pay the defendant’s costs wasted by reason of the inclusion in the Summons and later withdrawal of the allegation relating to safe work method statement. Otherwise the defendant is to pay the prosecutor’s costs. The orders for costs are that the party liable is to pay such costs as may be agreed or otherwise assessed. Addendum 10 May 2018 - Pursuant to the slip rule the orders made in paragraph 79 of the judgment of this Court on 29 March 2018 are amended as follows: The defendant is to pay the prosecutor’s costs (excluding the prosecutor’s costs attributable to the inclusion in the summons and later withdrawal of the allegation relating to the safe work method statement), less any sum attributable to defendant’s costs attributable to the withdrawn allegation.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – risk of death or serious injury – fall from stairwell edge SENTENCE – objective seriousness – aggravating factor – general deterrence – specific deterrence – mitigating factors – attitude to safety before the incident – actions since the incident – Fines Act – parity – penalty – whether s 239 undertaking appropriate COSTS – amendments to Summons
Legislation Cited:	Work Health and Safety Act 2011; Crimes (Sentencing Procedure) Act 1999; Fines Act 1996; Crimes Act 1900
Cases Cited:	Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96; Page v Walco Hoist Rentals Pty Ltd (No. 2) [2000] NSWIRComm 39; Nesmat Pty Ltd v WorkCover Authority (NSW) (1998) 87 IR 312; SafeWork NSW v Karimbla Constructions Services NSW Pty Ltd [2017] NSWDC 68; Postigliano v The Queen (1996-7) 189 CLR 295; SafeWork NSW v ProjectCorp Australia Pty Limited [2017] NSWDC 169; R v Ingrassia (1997) 41 NSWLR 447; Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37; Butters v R [2010] NSWCCA 1
Category:	Sentence
Parties:	SafeWork New South Wales (prosecutor); Freyssinet Australia Pty Ltd (defendant)
Representation:	Counsel: Mr I Taylor SC with Mrs E James appeared for the prosecutor; Mr A Moses SC with Mr D O’Neil and Ms J Alderson appeared for the defendant Solicitors: SafeWork NSW Legal Services (prosecutor); HWL Ebsworth Lawyers (defendant)
File Number(s):	2016/44806