SafeWork NSW v Guskho Demolition and Excavation Pty Ltd

[2023] NSWDC 414

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Guskho Demolition and Excavation Pty Ltd [2023] NSWDC 414

Hearing dates:

3, 4, 5 July 2023; 15 September 2023

Date of orders:

6 October 2023

Decision date:

06 October 2023

Jurisdiction:

Criminal

Before:

Strathdee DCJ

Decision:

(1) The prosecution has not proved all of the elements of the offences beyond reasonable doubt.

(2) I will not enter final orders until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW).

(3) I will list the matter on 6 November 2023 to determine the appropriate course.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – requirement for authorisation on work – licenced asbestos removalist – give false or misleading information – material particular - strict liability – supervision of workers – directing works

Legislation Cited:

Corporations Act 2001 (Cth)

Work Health and Safety Act 2011 (NSW)

Work Health and Safety Regulation 2017 (NSW)

Cases Cited:

R v Maslen & Shaw (1995) 79 A Crim R 199

Minister for Immigration, Local Government & Ethnic Affairs v Dela Cruz (1992) 34 FCR 348

R v Gervaise & Preece (New South Wales Court of Criminal Appeal, Smart, Grove and Studdert JJ, 13 November 1997)

R v Traino (1987) 27 A Crim R 271

Texts Cited:

Nil

Category:

Principal judgment

Parties:

SafeWork NSW (Prosecutor)
Guskho Demolition and Excavation Pty Ltd (Defendant)

Representation:

Counsel:
Ms N Evans (for the Prosecutor)
Mr M Sahade (for the Defendant)

Solicitors:
Department of Customer Service (for the Prosecutor)
Paramount Law Group (for the Defendant)

File Number(s):

2022/143244; 2022/144303; 2022/144329

Publication restriction:

Nil

JUDGMENT

Introduction

1. By way of three Summonses filed on 17 May 2022, SafeWork NSW (‘the Prosecutor’) charged Guskho Excavation and Demolition Pty Ltd (‘GDE’) with three offences under the Work Health and Safety Act 2011 (NSW) (‘the WHS Act’) as follows:

1. On 10 February 2018 at 303 Ocean Beach Road, Umina Beach in the State of New South Wales, the defendant, being a person conducting a business or undertaking, directed or allowed workers to perform work at a workplace on the defendant’s behalf, being work requiring authorisation under the Work Health and Safety Regulation 2017 (NSW) when the defendant was not so authorised, contrary to s 43(2) of the WHS Act.

2. On or about 24 January 2018 at 35 Broughton Street, Old Guilford in the State of New South Wales, or elsewhere, the defendant gave information in compliance or purported compliance with s 43(1) of the WHS Act that the defendant knew to be false or misleading in a material particular, contrary to s 268(1)(a) of the WHS Act.

3. On 6 February 2018 at 35 Broughton Street, Old Guildford in the State of New South Wales, or elsewhere, the defendant produced a document in compliance or purported compliance with s 43(1) of the WHS Act that the defendant knew to be false or misleading in a material particular, contrary to s 268(2) of the WHS Act.

2. GDE entered pleas of not guilty to each offence on 17 April 2023.

3. The trial commenced before me on 3 July 2023 and ran for 3 days, after which it was stood over for addresses on 15 September 2023, and judgment was reserved.

Background

4. GDE at all material times was engaged in asbestos removal and demolition as its primary business.

5. GDE was engaged by AKA Industries Pty Ltd (‘AKA’) to do asbestos removal and demolition work at a property located at 303 Umina Beach Road, Umina Beach, New South Wales (‘the Umina Beach Property’). AKA had been engaged to undertake works at the Umina Beach Property by another company, SHA Premier Constructions Pty Ltd.

6. AKA held a Class B asbestos removal licence which authorised them to remove non-friable asbestos in accordance with pt 8.10 of the Work Health and Safety Regulation 2017 (NSW) (‘the WHS Regulation’).

7. When AKA commenced demolition works including asbestos removal at the Umina Beach Property, the site contained non-friable asbestos only. AKA conducted those works in accordance with its Class B license.

8. On 1 January 2018, a fire occurred at the Umina Beach Property which resulted in the asbestos present at the site becoming friable. As a Class B license holder, AKA could not continue with the removal of friable asbestos. Accordingly, AKA engaged GDE to remove the friable asbestos.

9. GDE did not hold a Class A license at the time it was engaged by AKA.

10. Five Star Asbestos Pty Ltd (‘FSA’) is a company incorporated in Queensland which is also engaged in the business of asbestos removal. Francesco (Frank) Catanzaro (‘Mr Catanzaro’) is a director of FSA, held a Class A asbestos removal licence and was named as the nominated supervisor in respect of FSA’s Class A license.

11. GDE and FSA had developed an arrangement whereby the GDE would engage FSA to supervise a job if the works to be undertaken required supervision by a Class A asbestos removal license holder. This had occurred on approximately five occasions prior to the job at the Umina Beach Property and on one occasion afterwards.

12. In accordance with this arrangement, GDE believed that it had engaged FSA to supervise the removal of friable asbestos (works which required supervision by a Class A asbestos removal license holder) at the Umina Beach Property.

13. On 24 January 2018, a notification was sent to SafeWork NSW (‘the SafeWork notification’) nominating FSA as the Class A asbestos removal license holder to oversee the removal of the friable asbestos at the Umina Beach Property. The SafeWork notification purported to nominate three supervisors: Mr Catanzaro, Ghassan Khodr (‘Mr Khodr’) and Bashir El Kassab (‘Mr El Kassab’).

14. The SafeWork notification bore Mr Catanzaro’s electronic signature, which was affixed to the document by Rosaline Patricia Brookbank (‘Ms Brookbank’) who was Mr Catanzaro’s secretary at FSA at the time. Ms Brookbank was authorised to use Mr Catanzaro’s electronic signature on documents.

15. Ms Brookbank submitted the SafeWork notification to SafeWork NSW which was subsequently sealed as required by the legislation.

16. Mr Catanzaro denies knowledge of the SafeWork notification relating to the Umina Beach Property and disavows himself of it. Ms Brookbank asserts that she affixed Mr Catanzaro’s signature to the form as a matter of habit and submitted the form in error.

17. On 6 February 2018, the sealed SafeWork notification was provided by the defendant to AKA.

18. It is the Prosecutor’s case that the SafeWork notification contained false and misleading information to the extent that it purported to demonstrate that FSA was duly engaged and had been accepted by SafeWork NSW as the relevant Class A license holder to oversee the removal of friable asbestos at the Umina Beach Property.

19. On 10 February 2018, GDE performed works including the removal of friable asbestos at the Umina Beach Property. Mr Catanzaro was not physically present at the Umina Beach Property on that day.

20. GDE says that the SafeWork notification was prepared and submitted in the full knowledge and consent of Mr Catanzaro and Ms Brookbank. As such the work was properly authorised because FSA was duly engaged and accepted by SafeWork NSW as the nominated Class A supervisor.

Evidence

21. The Prosecutor tendered the following documents:

1. Affidavit of Howard Bell dated 30 June 2023 – exhibit 1

2. Two page document with pathology reports – exhibit 2

3. Prosecutor’s Tender Bundle (‘PTB’) – exhibit 3

22. GDE tendered the following documents:

1. Email dated 28 June 2023 to Ms Evans from Ms Sahade – exhibit A

2. Witness Statement of Rosemary Stevenson dated 10 November 2020 – exhibit B

3. Defendant’s Tender Bundle – exhibit C

Relevant legislative framework and elements of the offences

Section 43(2) charge

23. Section 43(2) of the WHS Act is in the following terms:

‘43 Requirements for authorisation of work

…

(2) A person who conducts a business or undertaking must not direct or allow a worker to carry out work at a workplace if—

(a) the regulations require the work, or class of work, to be carried out by, or on behalf of, a person who is authorised, and

(b) the person, or the person on whose behalf the work is to be carried out, is not authorised in accordance with the regulations.

Maximum penalty—

(a) in the case of an individual—230 penalty units, or

(b) in the case of a body corporate—1,155 penalty units.’

24. Clause 459(a) of the WHS Regulation requires a licenced asbestos removalist to ensure that the nominated asbestos removal supervisor for asbestos removal work requiring a Class A asbestos removal licence is present at the asbestos removal area whenever the asbestos removal is being carried out.

25. Clause 466(1) of the WHS Regulation requires a licenced asbestos removalist give written notice to the regulator at least five days before the removalist commences licensed asbestos removal work.

26. Clause 485(2) of the WHS Regulation provides as follows:

‘485 Requirement to hold Class A asbestos removal licence

…

(2) A person who conducts a business or undertaking must not direct or allow a worker to carry out the removal of the following unless the person holds a Class A asbestos removal licence—

(a) friable asbestos,

(b) except as provided in clause 486—ACD.

Note—See section 43(2) of the Act.’

27. As per s 12A of the WHS Act, s 43(2) is an offence of strict liability, thereby containing no fault element.

28. I have not been taken to any relevant case law dealing with a breach of s 43(2) of the WHS Act.

29. The Prosecutor acknowledges that the defence of honest and reasonable mistake is open, but not made out when dealing with a strict liability offence. Counsel for the defendant indicated during submissions that GDE will not be relying on that defence.

30. The Prosecutor also draws my attention to s 244 of the WHS Act which is in the following terms:

‘244   Imputing conduct to bodies corporate

(1) For the purposes of this Act, and conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate.

(2) If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against a body corporate for that offence to prove that the person referred to in subsection (1) had the relevant knowledge, intention or recklessness.

(3) If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against a body corporate for that offence if the person referred to in subsection (1) made that mistake of fact.’

31. The Prosecutor asserts that Mr Khodr, being the director of GDE is an ‘officer’ of GDE as per s 4 of the WHS Act or s 9 of the Corporations Act 2001 (Cth). As such, it is submitted, any conduct engaged in by Mr Khodr, within the actual or apparent scope of his employment, or within his apparent authority, is conduct also engaged in by the body corporate (the defendant), as per s 244(1). It is asserted that this is relevant to each charge before the Court.

32. GDE submits that this provision merely codifies the common law principles of agency, and they would apply even if that section was not present. The submission is that factually, Mr Khodr was not acting ‘on behalf of [GDE] a body corporate within the actual or apparent scope of his employment, or within his actual or apparent authority’. It is asserted that Mr Khodr was operating on behalf of FSA (expressly as its nominated supervisor), and the mere fact that he is a director of GDE does not mean that his actions were factually “on behalf of” GDE when he was clearly acting as an agent of FSA at the time.

33. The elements of this charge that the Prosecutor has to prove beyond reasonable doubt are:

1. That GDE was a PCBU;

2. That GDE was directing or allowing workers to carry out work (‘the work’) at a workplace;

3. That the work was carried out either by GDE, or on behalf of GDE;

4. That the work, or class of work could only be carried out by, or on behalf of, a person who is authorised; and

5. That GDE was not authorised to carry out such work, or have such work carried out on its behalf, in accordance with the regulations.

34. The defence has no objection to the elements provided in respect of the section 43(2) charge.

Section 268(1)(a) charge

35. Section 268(1)(a) of the WHS Act is in the following terms:

‘268   Offence to give false or misleading information

(1) A person must not give information in complying or purportedly complying with this Act that the person knows –

(a) To be a false or misleading in a material particular.’

36. Strict liability applies to each physical element of the charge; see s 12A of the WHS Act. The fault element for such a charge is one of knowledge, as is clear from the wording of the provision.

37. A particular/statement will be ‘material’ pursuant to s 268 if it was relevant to the purpose for which it was being made (as was the case in the present matter). It will be relevant to that purpose it if may be taken into account by the person to whom the statement is made in making any decision upon the matter in respect of the statement made. It cannot be something merely trivial or inconsequential: see R v Maslen & Shaw (1995) 79 A Crim R 199 (‘Maslen v Shaw’); Minister for Immigration, Local Government & Ethnic Affairs v Dela Cruz (1992) 34 FCR 348 at 352; R v Gervaise & Preece (New South Wales Court of Criminal Appeal, Smart , Grove and Studdert JJ, 13 November 1997).

38. It is not necessary that the statement be one which must or will be taken into account: Maslen v Shaw. A statement, the truth of which goes directly or indirectly to influence whether or not an action is performed is a material statement: R v Traino (1987) 27 A Crim R 271.

39. The elements of this charge that the prosecution need to prove beyond reasonable doubt are:

1. That Mr Khodr gave information to Ms Brookbank;

2. That such information was given in compliance or purported compliance with the WHS Act; and

3. That Mr Khodr knew that such information was false or misleading in a material particular.

40. The defence wishes to clarify two points in respect of the elements provided with respect of the s 286(1)(a) charge:

1. It is GDE, not Mr Khodr, who is charged with giving the information; and

2. The information that is ‘given in compliance or purported compliance with the Act’ is to SafeWork, not to Ms Brookbank per se.

41. Subject to those clarifications, the defence does not cavil with the propositions that it understands the Prosecutor seems to be contending in respect of this charge, namely;

1. That Mr Khodr was acting on behalf of GDE; and

2. That Ms Brookbank was used as an instrument of GDE (through Mr Khodr on behalf of GDE) in providing the information to SafeWork.

42. The Prosecutor asserts that, in this case, given the regulations and requirements around the removal of Class A asbestos and supervision of same, a statement concerning the supervision of such work could only be, in the Prosecutor’s submission a ‘material’ statement. I accept that to be the case.

Section 268(2) charge

43. Section 268(2) is in the following terms:

‘268 Offence to give false or misleading information

…

(2) A person must not produce a document in complying or purportedly complying with this Act that the person knows to be false or misleading in a material particular without—

(a) indicating the respect in which it is false or misleading and, if practicable, providing correct information, or

(b) accompanying the document with a written statement signed by the person or, in the case of a body corporate, by a competent officer of the body corporate—

(i) stating that the document is, to the knowledge of the first-mentioned person, false or misleading in a material particular, and

(ii) setting out, or referring to, the material particular in which the document is, to the knowledge of the first-mentioned person, false or misleading.

1. Maximum penalty—

2. (a) in the case of an individual—115 penalty units, or

(b) in the case of a body corporate—575 penalty units.

44. Strict liability also applies to each physical element of the charge; see s 12A of the WHS Act. The fault element for this charge is one of knowledge, as is clear from the wording of the provision.

45. The elements of this charge that the prosecution need to prove beyond reasonable doubt are:

1. That Mr Khodr produced a document to AKA;

2. That such a document was produced in compliance or purported compliance with the WHS Act;

3. That Mr Khodr knew the document to be false or misleading in a material particular; and

4. That Mr Khodr did not:

1. Indicate the respect in which the document was false or misleading and, if practicable, provide correct information, or

2. accompany the document with a written statement signed by him, or by a competent officer of GDE:

3. stating that the document was, to the knowledge of him, false or misleading in a material particular, and

4. setting out, or making reference to, the material particular in which the document was, to the knowledge of Mr Khodr, false or misleading.

46. GDE submits that a similar clarification in respect of the s 268(2) charges should be made, namely that the person charged is GDE and not Mr Khodr.

Oral evidence

Gary Phillip Chapple

47. Gary Phillip Chapple (‘Mr Chapple’) is a principal inspector at SafeWork NSW, has been in that role for approximately 15 years, and was tasked with investigating allegations of unlicensed asbestos removal work at the Umina Beach Property (T19.5-31). Those investigations included physically inspecting the premises and issuing several notices under s 155 of the WHS Act to GDE and FSA. Mr Chapple also spoke to Mr Khodr and Mr Catanzaro and liaised with Mr Catanzaro’s solicitor (T19.33-T22.17).

48. Mr Chapple gave evidence that, based on documents he had seen as a consequence of a fire on 1 January 2018, he had seen a report of Mr Philip Clifton (‘Mr Clifton’) that there was friable asbestos present at the site (T23.11-T24.33).

49. Mr Chapple gave evidence that he came to be aware that Ms Brookbank had been working for FSA as a contractor that performed administrative duties for FSA and Mr Catanzaro.

50. Mr Chapple’s evidence was that following enquiries with various regulators throughout Australia, he determined that GDE did not hold a Class A asbestos removal license in New South Wales or anywhere else in the country prior to 12 March 2018 (T26.29-T26.48). He confirmed that he received an email from Mr Khodr on 14 July 2020, the contents of which meant that Mr Khodr was the supervisor of the friable asbestos removal at the Umina Beach Property on 10 February 2018 and that FSA had not been involved (T28.4-T28.37).

51. Under cross-examination, Mr Chapple gave evidence that he understood Ms Brookbank had used Mr Catanzaro’s electronic signature to sign the SafeWork notification on his behalf, and that she had authorisation to do so for all documents submitted by FSA to SafeWork (T38.33-T38.39). He gave further evidence that he believed that Ms Brookbank was under the impression that she had the authority to submit forms to SafeWork NSW with Mr Catanzaro’s digital signature (T39.1-T39.5).

52. Mr Chapple gave evidence in a forthright manner, and I accept him as a witness of truth.

Rosaline Patricia Brookbank

53. Ms Brookbank gave evidence that she worked for FSA between 2015 and 2021, performing administrative tasks which included preparing control plans, safe work method statements (‘SWMS’) and quotations. Ms Brookbank performed her duties from home (T44.23-T45.5).

54. Ms Brookbank agreed that she received an email from Mr Chapple containing a s 155 notice marked with the date 12 October 2020 requiring her to answer questions truthfully, and she provided her response on 27 October 2020 (T46.9-T48.39). She indicated that she may have spoken to her husband and to Michael Catanzaro (Mr Catanzaro’s nephew who is a solicitor), about completing her response to the s 155 notice (T49.30-T49.49).

53. Ms Brookbank gave evidence that she thought FSA was a ‘one man band’ and that the only person who ever directed her to submit forms to SafeWork NSW or the equivalent regulator in Queensland was Mr Catanzaro (T52.23-T52.35).

54. Ms Brookbank stated that she submitted a notification of asbestos removal work to SafeWork NSW in January 2018 to remove friable asbestos at the Umina Beach Property, but that she had submitted the form in error as it was not meant to be on behalf of FSA. She could not recall how she came to discover that the SafeWork notification had been submitted in error, but assumed that Mr Catanzaro had told her (T52.37-T53.4).

55. Ms Brookbank gave evidence that she was directed by Mr Khodr to prepare and lodge the notification form with SafeWork NSW because she had been led to believe that FSA was involved in the project at the Umina Beach Property which she later discovered was not the case. Ms Brookbank explained that she had previously acted upon information received from Mr Khodr about previous jobs and that this instance was no different (T53.6-T53.14).

56. Ms Brookbank gave evidence that she had dealt with Mr Khodr on five previous occasions but that she never met him in person and communicated with him mainly by email and only occasionally by phone. She confirmed that Mr Khodr would email her directly and not include Mr Catanzaro in those emails (T53.20-T53.45).

57. At T55.35 she gave the following evidence:

‘I have the authority to do so for jobs FSA are involved in. In this case and after the fact, I later discovered that I was misled by Gus into thinking that FSA was involved in this job. I prepared and signed the forms in error thinking this to be the case.’

60. Ms Brookbank gave evidence that on the request of Mr Khodr, and nobody else, she submitted the SafeWork notification by email on 24 January 2018 (T59.17-T59.34), and that she worked exclusively for FSA (T59.39-T61.19).

61. Under cross-examination, Ms Brookbank stated that she was shocked to receive official SafeWork documents addressed to her personally. She admitted that she realised at the time that they related to Mr Catanzaro’s work but could not recall whether she spoke to him about them or not (T63.43-T64.13).

62. Ms Brookbank confirmed that she had access to and used the email address [email protected], during the course of her work for FSA. She confirmed that Mr Catanzaro did not use it nor to her knowledge have access to it (T65.41-T67.1).

63. Counsel for the defendant referred Ms Brookbank to an email sent from [email protected] to GDE’s email address on 18 January 2018. The email attached a signed reference by Mr Catanzaro on FSA letterhead purporting to support Mr Khodr and Mr El Kassab in their applications for Class A asbestos removal licenses (‘the reference letter’). The reference letter commended Mr Khodr and Mr El Kassab for their involvement in five previous asbestos removal projects which proceeded under his supervision which occurred between 2015 and 2018 (T66.23-T67.30). Those projects took place at the following locations (T67.33-T67.47):

• Bowen, Queensland

• Roselands, New South Wales (‘the Roselands job’)

• Eastwood, New South Wales (‘the Eastwood job’)

• Regents Park, New South Wales (‘the Regents Park job’)

• Sarina, Queensland

64. Ms Brookbank recalled preparing an email sent to GDE on 29 September 2017 relating to an asbestos removal job in Sydney. The email sought various details about the job for the purposes of preparing a notification form and was signed off with Mr Catanzaro’s details. Ms Brookbank confirmed that she had Mr Catanzaro’s permission to use his name in emails. Ms Brookbank agreed that she was acting on Mr Catanzaro’s instructions and there was nothing to indicate that the correspondence was not coming from Mr Catanzaro himself (T68.22-T69.18).

65. Ms Brookbank agreed that she sent draft SafeWork forms to GDE for completion by Mr Khodr from FSA’s email account in relation to the Roselands job and the Eastwood job. Ms Brookbank agreed that Mr Khodr had responded to her on both occasions with the outstanding sections completed (T72.5-T73.15).

66. Ms Brookbank recalled submitting the SafeWork notification form for the Eastwood job. When asked how she knew whether the form was being submitted with Mr Catanzaro’s consent, she stated that she presumed that he had instructed her to do it. She agreed that she could have called Mr Catanzaro at any stage to ask him questions if she needed to (T75.42-T76.7).

67. Ms Brookbank stated that Mr Khodr had sent FSA an email in relation to the Regents Park job and that she filled out a SafeWork form in relation to it. She gave evidence that she would have received information about the Regents Park job required for the form from Mr Khodr, and that it was unlikely the information came from Mr Catanzaro but that she could not say with any certainty who gave her the information (T81.43-T82.24).

68. Ms Brookbank agreed that she received an email from Mr Khodr on 23 January 2018 in which Mr Khodr asked her to prepare SafeWork documentation nominating himself and Mr El Kassab as supervisors for the job at the Umina Beach Property (T84.38-T85.4).

69. Ms Brookbank’s evidence was that she responded by email to Mr Khodr, advising him that Mr Catanzaro needed to be physically present at the Umina Beach Property because he and Mr El Kassab did not at that time hold Class A licenses. Although agreeing that it was always open to her to discuss the preparation of the SafeWork form with Mr Catanzaro, Ms Brookbank’s evidence was that she had no memory of doing so on that occasion (T86.16-T87.6).

70. Ms Brookbank denied that Mr Khodr prevented her from talking to Mr Catanzaro about the job at the Umina Beach Property or that there was anything misleading in his email (T87.8-T87.13).

71. Ms Brookbank was shown the SafeWork notification for the Umina Beach Property in which Mr Catanzaro, Mr El Kassab and Mr Khodr were listed as nominated supervisors and confirmed that she drafted the form. She stated that she could not recall discussing the SafeWork notification with Mr Catanzaro (T87.36-T88.4).

72. Ms Brookbank was taken to an email she sent to Mr Khodr on 24 January 2018 asking him to complete an outstanding section of the SWMS relevant to the Umina Beach Property job, to ensure that certain information was correct and to provide the names of additional workers and details about their blue cards. Ms Brookbank’s evidence was that she could not remember what caused her to ask Mr Khodr those questions. She maintained that it was unlikely that Mr Catanzaro instructed her to do so (T88.20-T89.21).

73. Ms Brookbank was taken to the SWMS prepared for the job at the Umina Beach Property which included the following notation (T90.11-T91.5):

‘This SWMS has been developed in consultation with the underside [sic] employees and accepted, reviewed by Frank Catanzaro, Ghassan Khodr, Bassir El Kassab.’

74. Counsel for the defendant asked how Mr Catanzaro reviewed the SWMS, given that he did not have email access to do so. Ms Brookbank’s evidence was that she would have printed it out and given it to him but that she does not recall doing so. She explained that as the job was being done in Sydney, she would have sent the SWMS down for the supervisors to review together (T91.12-T91.29).

75. Counsel for the defendant took Ms Brookbank to answers she had provided to SafeWork NSW as part of its investigation, observing that she had on three separate occasions made reference to later discovering that Mr Khodr had misled her into thinking that FSA was involved in the job at the Umina Beach Property. When asked how she came to realise that she had been misled, Ms Brookbank’s evidence was that she could not remember what made her realise that FSA was not involved in the job. She could not remember if Mr Catanzaro had told her that FSA was not involved in the job (T95.20-T96.33).

76. The following exchange then took place (T96.35-T96.41):

‘Mr Sahade: So, you can't tell us what the event was that caused you to realise that you had been taken advantage of?

Ms Brookbank: No, I can’t. I’m sorry.

Mr Sahade: Well then, if that’s the case, am I fair to say that you can’t say for a fact that you were misled or taken advantage of?

Ms Brookbank: Well, as far as I know, it was - that it's why we're here, so I'm presuming.’

77. I accept that Ms Brookbank was trying to give an accurate account of the events that transpired, and that her memory was fairly good. However, during cross-examination, her demeanour changed, and it seemed to me that she was tailoring her answers to convey, what she may have thought would protect Mr Catanzaro. I accept some of her evidence as honest, but towards the end of her evidence, I have doubts whether the evidence she gave was truthful.

Francesco Rosario Catanzaro

78. Mr Catanzaro confirmed that Ms Brookbank did all of his paperwork for FSA (T103.19-T103.44).

79. Counsel for the Prosecutor took Mr Catanzaro to the notifications issued to him and to the Proper Officer at FSA. Mr Catanzaro’s evidence was that he had never seen the documents before and that he didn’t know where Umina Beach was (T104.28-T105.4).

80. Mr Catanzaro gave evidence that he could not remember speaking to anybody from SafeWork NSW about the job at the Umina Beach Property (T105.9-T105.30), nor that he had a conversation with Mr Khodr about the Umina Beach Property (T106.26-T106.28).

81. Mr Catanzaro stated that Ms Brookbank spoke to him about the Umina Beach Property after Mr Khodr had performed the work and said that he had misunderstood her (T106.35-T107.15).

82. Mr Catanzaro explained that it was standard practise for Ms Brookbank to use his signature on SafeWork forms and that not unusual for Ms Brookbank to submit forms to SafeWork with his signature without discussing it with him first (T107.20-T107.34).

83. Mr Catanzaro denied ever telling Mr Khodr through any means that he would supervise him to remove friable asbestos at the Umina Beach Property (T107.50-T108.15).

84. Under cross-examination, Mr Catanzaro denied seeing the document recording answers he gave to questions contained in the s 155 notice and denies signing the document (T108.27-T108.47).

85. Mr Catanzaro admitted that the FSA s 155 notice response bore his signature but strenuously denied knowledge of the answers given in the document including any knowledge of the job at the Umina Beach Property and Umina Beach itself (T108.27-T110.5).

86. Mr Catanzaro was shown the reference letter (contained within Exhibit C) and asked whether the signature at the bottom of the page was his. Mr Catanzaro responded as follows (at T111.39-T111.44):

‘It looks like it, but it is probably it, because it's not me that was doing the signing of everything. I did not sign anything for New South Wales. I don't remember any of that, so how can I - and I wouldn’t be that stupid, sir. I did do high class. It's just that I trusted her, and, and she misunderstood me, mate. I don't know. But there, electronically, she had it all the time. She'd send our quotes out. She'd do everything.’

87. Mr Catanzaro gave evidence that he could not remember the Roselands job or the Regents Park job (T111.46-T112.27). He stated that he had been having memory problems after being hit on the head with a log at a job in Hughenden and that he was seeking medical advice (T112.32-T112.45).

88. Mr Catanzaro clarified that he didn’t remember signing the reference letter from Mr Khodr and Mr El Kassab (T113.1-T113.3).

89. Mr Catanzaro was an unimpressive witness, and I formed the view that he gave evidence in such a manner as to ensure that he could not be found responsible for the events that occurred. I do not accept him as a witness of truth.

Ghassan Khodr

90. Mr Khodr confirmed that he was the director of GDE and that he received a s 155 notice on GDE’s behalf and provided truthful answers in response (T117.15-T118.6).

91. Mr Khodr gave evidence that he remembered performing the Roselands job referred to in the reference letter under the umbrella of FSA and that Mr Catanzaro was present at that job (T120.7-T120.17).

92. Mr Khodr gave evidence that he performed the Eastwood job without Mr Catanzaro being physically present. Mr Khodr explained that it was sufficient for one of the supervisors to be present on site and that if something went wrong, the license holder would be called (T120.20-T120.48).

93. Mr Khodr confirmed that he asked Ms Brookbank to ‘do approval’ for the job at the Umina Beach Property and that he provided information to Ms Brookbank via email to be inserted into the notification form, including that he and Mr El Kassab be named as supervisors (T121.39-T122.37).

94. Mr Khodr confirmed that he received an email from Ms Brookbank on 24 January 2023 in which she wrote that Mr Catanzaro had to be on site as a Class A asbestos removalist because he and Mr El Kassab did not yet have Class A licenses. Mr Khodr explained that although Mr Catanzaro was a named supervisor, he didn’t need to be physically present on site and only needed to attend if something happened (T122.39-T123.15).

95. Mr Khodr gave evidence that the arrangement existing between FSA and GDE was the same at for the Umina Beach Property as it was for the Roselands job and the Eastwood job (T123.240-T123.30).

96. Counsel for the defendant took Mr Khodr to the notification form that was provided to SafeWork NSW for the job at the Umina Beach Property naming himself along with Mr Catanzaro and Mr El Kassab as supervisors. Mr Khodr denied tricking anyone in relation to the notification form and said he did what always did, which was to name more than one supervisor in case someone couldn’t make it or fell sick (T124.25-T.124.50).

97. Mr Khodr’s evidence was that he believed that Ms Brookbank submitted the notification form to SafeWork NSW because she did all of Mr Catanzaro’s paperwork (T125.48-T126.2). Mr Khodr denied tricking Ms Brookbank into sending the notification form to SafeWork NSW. He said that he never called and spoke to Ms Brookbank and only to Mr Catanzaro, who dealt with Ms Brookbank (T126.4-T126.8).

98. Mr Khodr gave evidence that he spoke with Mr Catanzaro every time before he would send anything to the FSA address and that he did not know at that time that Ms Brookbank had access to the FSA email account (T126.10-T126.15).

99. Mr Khodr gave evidence that he received a telephone call from Mr Catanzaro one week prior to the commencement of the hearing in which Mr Catanzaro told him that he was ‘sorry about what happened’ and that he had to do what he had to do (T127.3-T127.41).

100. Mr Khodr confirmed that after the Umina Beach Property job, he performed a job at Warriewood in New South Wales (‘the Warriewood job’) (T127.47).

101. Mr Khodr was shown forms prepared in relation to the Warriewood job, including one bearing Mr Catanzaro’s electronic signature, and said that Mr Catanzaro knew about the Warriewood job because he called and spoke to him after a SafeWork NSW inspector had visited the site to check paperwork. Mr Khodr confirmed that Mr Catanzaro did not physically attend the Warriewood job (T129.25-T129.35).

102. Mr Khodr was shown a letter he wrote bearing GDE’s letterhead in which he noted that FSA did not have any involvement in the Umina Beach Property job. Mr Khodr clarified that Mr Catanzaro would only have been involved in the removal if anything happened on site and that he’d have to be present if he was called by a supervisor (T131.27-T131.39).

103. Mr Khodr’s evidence was that he spoke to Mr Catanzaro on the phone in relation to the Umina Beach Property job and that he knew all about it. He clarified that he never spoke to Ms Brookbank on the phone and only emailed her (T143.26-T143.38).

104. Mr Khodr stated that he knew that forms being sent to SafeWork needed to contain truthful information. He denied ever allowing documents to be sent to SafeWork NSW that he believed to be false or misleading. Mr Khodr confirmed that when he presented the notification form to AKA he believed it to be true and correct (T144.14-T144.39).

105. Under cross-examination, Mr Khodr gave evidence that he understood that the work in which he was engaged was dangerous (T146.1), and confirmed that he was not concerned from a safety perspective about the work he was performing even though he did not hold a class A license, because he was taking the proper safety steps in accordance with how he had been taught at TAFE (T151.8-T151.19).

106. Mr Khodr denied a suggestion made by Counsel for the Prosecutor that he had misunderstood the need to have Mr Catanzaro physically on site at the Umina Beach Property. His evidence was that he had spoken to a SafeWork NSW supervisor and confirmed that the practise adopted by GDE (whereby Mr Catanzaro was named as a supervisor on asbestos removal jobs requiring Class A supervision but permitted not to physically attend the site) was permissible (T153.29-T154.9).

107. Mr Khodr admitted that he did not have a Class A license at the time of the job but maintained that he had been accepted as a nominated supervisor on the basis of that the notification form for the Umina Beach Property had been approved and sealed by SafeWork NSW (T154.45-T155.3).

108. Mr Khodr gave evidence that he understood the difference between a supervisor and a license holder and agreed that he could not have performed the removal of friable asbestos unsupervised. He denied that he worked unsupervised at the Umina Beach Property, asserting instead that he was working ‘under FSA’ (T155.5-T155.33).

109. Under re-examination, Mr Khodr clarified that when he saw the ‘accepted’ stamp on the SafeWork NSW notification form, he believed that he was an authorised supervisor and that he would not have done the job if the form did not bear his name as a supervisor (T156.24-T156.48).

110. Mr Khodr gave evidence before me in a clear and forthright manner. If he did know or recall he said so. I have no hesitation in accepting him as a witness of truth.

Discussion

111. It is agreed between the parties that the work being undertaken at the Umina Beach Property involved the removal of friable asbestos. Accordingly, cl 485(2) of the WHS Regulation applied.

112. Clause 493 of the WHS Regulation relates to persons who were working under a Class A asbestos removal license. Clause 493 is as follows:

‘493 Content of application – Class A asbestos removal license

(1) For the purposes of clause 492(2)(h), an application for a Class A asbestos removal licence must include the following—

(a) the names of 1 or more competent persons who have been engaged by the applicant to supervise the asbestos removal work to be authorised by the licence,

(b) evidence, as required by the regulator, that each named supervisor is at least 18 years of age,

(c) a copy of a certification issued to each named supervisor for the specified VET course for the supervision of asbestos removal work,

(d) evidence that each named supervisor has at least 3 years of relevant industry experience,

(e) evidence that the applicant has a certified safety management system in place.

(2) If the applicant is an individual who proposes to supervise the carrying out of the Class A asbestos removal work, the statement and information referred to in subclause (1)(b), (c) and (d) must relate to the applicant.’

113. Clause 493(a) allowed FSA as a Class A asbestos removal license holder to nominate the names of one or more supervisors. I note that FSA’s license issued by WorkSafe Queensland on 24 September 2014 (exhibit A) only bears the name of Mr Catanzaro as a supervisor.

114. Pursuant to cl 498 of the WHS Regulation, upon making a decision about granting FSA’s license, the regulator needed to have been satisfied that:

(a) each supervisor named by the applicant—

(i) is at least 18 years of age, and

(ii) holds a certification for—

(A) the specified VET course for the supervision of asbestos removal work, and

(B) the specified VET course for the Class A asbestos removal work, and

(iii) has at least 3 years of relevant industry experience, and

(b) the applicant has a certified safety management system in place.’

115. It is agreed that Mr Catanzaro was relevantly qualified to hold such licence, and that Mr Khodr was not. However, it is important to note that the Class A license is held by FSA, and Mr Catanzaro is nominated on it as ‘supervisor’ (tab 13 of the PTB).

116. If GDE had engaged FSA as a licensed asbestos removalist to supervise the work (which as has been established required a Class A license), cl 459(a) of the WHS Regulation required FSA to ensure that a nominated supervisor was present. It is in the following terms:

‘459 Asbestos removal supervisor must be present or readily available

A licensed asbestos removalist must ensure that the nominated asbestos removal supervisor for asbestos removal work is—

(a) if the asbestos removal work requires a Class A asbestos removal licence—present at the asbestos removal area whenever the asbestos removal work is being carried out, and

(b) if the asbestos removal work requires a Class B asbestos removal licence—readily available to a worker carrying out asbestos removal work whenever the work is being carried out.

Maximum penalty—

(a) in the case of an individual—70 penalty units, or

(b) in the case of a body corporate—345 penalty units.’

117. I am of the view that ‘present’ in the cl 459 means a physical presence.

118. The Prosecutor alleges that FSA was not engaged by GDE to supervise the removal of friable asbestos at the Umina Beach Property, and that by proceeding with the removal of the friable asbestos, GDE infringed the WHS Act giving rise to the three charges.

119. GDE says that it was so engaged.

120. In my view, if it was the case that FSA’s Class A license included Mr Khodr as a supervisor, it would have needed to have borne his name as a supervisor at the time it was granted. If the license did not originally bear Mr Khodr’s name, it would have needed to have been subsequently amended in the formal way in accordance with cls 507 and 509 of the WHS Regulation. It does not appear as though either of these things occurred.

121. The principal evidence advanced by GDE on this issue was the SafeWork notification which formed part of exhibit C – the Defence Tender Bundle.

Propositions of law upon which the parties rely

122. The parties helpfully prepared documents setting out the propositions of law that are applicable to these proceedings, and the matters about which I should make findings of fact. The defendant has helpfully responded to each of the Prosecutor’s lists, including the elements of the offence. I am grateful to the parties for their assistance and sensible approach.

123. The Prosecutor’s submissions:

“Regarding ‘materiality’ relevant to the two s. 268 charges before the Court:

A particular/statement will be ‘material’ pursuant to s. 268 if it was relevant to the purpose for which it was made. It will be relevant to that purpose if it may be taken into account by the person to whom that statement is made in making decision upon the matter in respect of the statement was made. It cannot be something merely trivial or inconsequential : : see Regina v Maslen & Shaw (1995) 79 A Crim R 199; Minister for Immigration, Local Government & Ethnic Affairs v Dela Cruz (1992) 34 FCR 348 at 352; Regina v Gervaise & Preece (NSWCCA, unreported 13 November 1997.

It is not necessary that the statement be one which must or will be taken into account(see Maslen V Shaw (supra***)). A statement, the truth of which goes directly or indirectly to influence whether or not an action is performed is a material statement: Regina v Traino (1987) 27 A Crim R 271.

Particulars:

Each particular/fact alleged does not have to be proved beyond reasonable doubt. All that is required is that each element of the charge is proved to the requisite standard. Particulars are provided so as to inform the Court of the identity of the offence with which it is required to deal and so the defendant is provided with the substance of the charge which it is called upon to meet; John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508 at 519; Kirk v Industrial Court of NSW (2010) 239 CLR 531 at [26].”

124. I will not address the propositions in regard to honest and reasonable mistake of fact as GDE no longer relies on this defence.

125. GDE’s submissions:

“The section 43(2) charge now advanced by the prosecutor (see paragraph 6 of the prosecutor’s submissions) has widened beyond the pleaded charge in the incident and the particulars subscribed to that indictment.

The prosecutor ought not be permitted to advance the new allegations in respect of that charge without an amendment to that indictment and its particulars and leave in that respect should only be given if there is no prejudice to the accused.

Any leave should be on the basis if the prosecutor first presenting an amended charge that specifically pleads how the actions of DGE assisted or encouraged (aided or abetted) the principle offender FSA to commit such a breach and or particularise how GDE was a party to and knowingly concerned in the failure of FSA to have a supervisor personally on site. It ought not be allowed at this stage of the proceeding during the course of closing addresses”

Findings of fact

126. Based on all the evidence and the submissions of the parties, I make the following findings of fact:

1. GDE is an Australian Proprietary Company. It was first registered on 4 February 2013 with a sole director Ghassan Khodr. At all material times, Mr Khodr was the sole director of GDE.

2. GDE conducted a business or undertaking that included demolition and asbestos removal work.

3. In January 2018, GDE was engaged by AKA to undertake friable asbestos removal work at the site. The work was ultimately done at the site on 10 February 2018 and required the removal of friable asbestos.

4. At all material times, GDE did not hold a class A asbestos removal licence, being the type of licence required to lawfully carry out the removal of friable asbestos. GDE held a class B licence as Mr Khodr had done a TAFE course relevant to that qualification, and a class B licence meant that GDE could not direct workers to carry out removal of friable asbestos.

5. FSA is a company that conducts asbestos removal work. Mr Catanzaro is a director of FSA and at all material times FSA held a Class A asbestos removal licence on which Mr Catanzaro was named as the nominated supervisor.

6. Because of that legal requirement, Mr Khodr entered into an arrangement with FSA for FSA to do that work for GDE. Mr Khodr had a direct relationship with FSA having done several projects with the company in the past.

7. On or about 24 January 2018, Mr Khodr, on behalf of GDE provided information to Ms Brookbank of FSA by email, which was subsequently passed to SafeWork in purported compliance with s. 43(1) of the WHS Act.

8. The details were not false in any material particular, and Mr Khodr had regularly in the past provided the details of the work to be carried out by FSA has he had previously done.

9. Ms Brookbank prepared the form behind tab 13 of the PTB and it was then submitted to SafeWork on behalf of FSA on 24 January 2018.

10. Mr Khodr’s conduct in doing so did not knowingly provide false and/or misleading information to Ms Brookbank.

11. The document was accepted by SafeWork on or about 6 February 2018, and Mr Khodr, on behalf of GDE produced a document to AKA Industries Pty Ltd in purported compliance with s 43(1) of the WHS Act.

12. I do not accept that in doing so, that Mr Khodr knew that such information was false or misleading in a material particular.

13. On 10 February 2018, FSA directed or allowed workers to perform work at the site on GDE’s behalf.

14. FSA had nominated in that form Mr Khodr as the third relevant supervisor for the work on behalf of FSA (see tab 13 of the PTB). That may or may not have been legally justifiable, and it may well be that only Mr Catanzaro was properly authorised personally to supervise the work on the site as he is the authorised person noted on the class A licence of FSA. However, if that be the case, it is an error made by FSA and not GDE.

15. Notwithstanding that FSA entered Mr Khodr’s details on the form because of its previous connection with him personally, the defendant, GDE is not mentioned on that form at all.

16. When Mr Khodr was “supervising and directing” workers to carry out the work, I find that he did so on behalf of FSA and not GDE. That was the whole point of GDE engaging FSA in the first place, as it was FSA not GDE that held the required class A licence.

17. I find that any breach by FSA of section 43(2) as the holder of the class A licence is not a breach by GDE as GDE had engaged FSA for that purpose.

18. Similarly, the presence of Mr Khodr on site as the ‘supervisor’, and not Mr Catanzaro was, rightly or wrongly, Mr Khodr acting as the expressly nominated supervisor for and on behalf of FSA and not GDE.

19. Mr Khodr was a director of GDE, and as a director he caused GDE to engage FSA, but it was FSA that expressly nominated Mr Khodr as a supervisor, rightly or wrongly. GDE is not mentioned in the form as a person who would be directing that work, unlike FSA in section 2, and the mere fact that Mr Khodr happens to be a director of GDE does not make GDE criminally responsible for the actions of FSA.

20. I find that Mr Khodr in the dealings that are the subject of the charges did not engage in ‘trickery’. Ms Brookbank’s evidence about having been misled is difficult to accept. There had been a practice established over past involvements between the parties was well established. There is no clear indication as to how or when Ms Brookbank had been ‘duped’ by GDE. In fact at best Ms Brookbank ‘assumed’ that to be the case, essentially reasoning, ‘otherwise why else would this matter be prosecuted?’ (T96.24-26).

21. I prefer the evidence of Ms Stevenson in her witness statement given on 10 November 2020 (exhibit B) that she personally telephoned Mr Catanzaro regarding the form and that he personally confirmed the details that she completed on the form in ‘red pen’ (see tabs 13 and 14 of the PTB).

22. Ms Stevenson wrote on the form ‘spoke to Francesco on 25/1/2018 to confirm re decontamination and no. of workers for the removal work’. This evidence was uncontested and I accept that it cannot be the case that FSA had no real knowledge of the works to be performed and FSA was only nominated as a sham to disguise who was actually doing the works.

23. FSA and not GDE nominated three supervisors who could be personally present on the site (see tab 13 of the PTB). Mr Khodr was nominated as a supervisor, and his evidence before me was that he believed that he was entitled to supervise the work. Moreover, it was FSA that so nominated him and thus when directing the workers to carry out the works, Mr Khodr was acting as the agent of FSA and not GDE.

24. When Mr Khodr personally ‘supervised’ and ‘directed’ workers to carry out the work, he did so on behalf of FSA as that was the whole point of GDE engaging FSA in the first place.

127. For reasons stated above, the Prosecutor has not proved all the elements of the offences beyond reasonable doubt.

Orders

128. I make the following orders:

1. The prosecution has not proved all of the elements of the offences beyond reasonable doubt.

2. I will not enter final orders until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW).

3. I will list the matter on 6 November 2023 to determine the appropriate course.

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Decision last updated: 06 October 2023