SafeWork NSW v Hadcon Constructions Pty Ltd - [2020] NSWDC 316

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Hadcon Constructions Pty Ltd [2020] NSWDC 316
Hearing dates: 4 June 2020
Date of orders: 19 June 2020
Decision date: 19 June 2020
Jurisdiction: Criminal
Before: Strathdee, DCJ
Decision:
(1) The defendant is convicted.
(2) The appropriate fine for the defendant would be $120,000.00 and that will be reduced by 25% to reflect a plea of guilty.
(3) I accordingly order the defendant to pay a fine of $90,000.00.
(4) 50% of the fine imposed is to be paid to the prosecutor.
(5) 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 a business – risk of death or serious injury
SENTENCE – objective seriousness- mitigating factors-aggravating factors- plea of guilty – discount of 25% because of the utility of the plea -general deterrence-specific deterrence- appropriate penalty-remorse - contrition
COSTS – prosecution costs
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Fines Act 1996 (NSW)
Work Health and Safety Act 2011 (NSW)
Work Health and Safety Regulation 2011 (NSW)
Cases Cited: Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) NSWLR 338
Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92
Kirk v Industrial Commission of New South Wales [2010] HCA 1
Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464
Markarian v The Queen (2005) 228 CLR 357
Morrison v Powercoal Pty Limited & Anor (No.3) [2005] NSWIRComm 61
Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
Orbit Drilling v The Queen [2012] VSCA 82
R v Cage [2006] NSWCCA 304
R v Miria [2009] NSWCCA 68
SafeWork NSW v Emu Group Pty Limited [2019] NSWDC 537
SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632
SafeWork NSW v Orbit Formwork Pty Limited [2019] NSWDC 685
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
Texts Cited: 1995 Guidelines for Scaffolding
Australian Standard 2359: Powered Industrial Trucks (2013)
General Guide for Scaffolds and Scaffolding Work in July 2014
Guide to Scaffold Inspection and Maintenance” dated July 2014
SafeWork NSW brief guide ‘Toolbox Talk: Take Forklifting Safety Seriously’
SafeWork NSW Code of Practice ‘How to Manage Work, Health and Safety Risks’ (December 2011)
SafeWork NSW Code of Practice ‘Managing the Risks of Plant in the Workplace’ (July 2014)
SafeWork NSW’s Code of Practice Managing the Risk of Falls at Workplaces
WorkCover Safety Alert ‘Working with or around Mobile Plant’
Category: Sentence
Parties: SafeWork New South Wales (Prosecutor)
Hadcon Constructions Pty Ltd (Defendant)
Representation: Counsel:
Mr N Read appeared for the Prosecutor
Mr M Cahill appeared for the Defendant
Solicitors:
SafeWork NSW…

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: [2020] NSWDC 316
Decision Date: 19 June 2020

CaseChat Overview and Summary

In the matter of SafeWork NSW v Hadcon Constructions Pty Ltd, the defendant was prosecuted for breaches of work health and safety regulations, which resulted in a serious incident. The case was heard in the NSW District Court, where the primary focus was on the adequacy of safety measures implemented by the defendant, Hadcon Constructions, in its construction operations. The prosecution, led by SafeWork NSW, argued that the defendant failed to ensure the safety of its workers, leading to an incident that had the potential to cause death or serious injury.

The central legal issues revolved around the interpretation and application of the work health and safety legislation, specifically the duty of care owed by persons undertaking a business or undertaking. The court had to determine whether Hadcon Constructions had breached its statutory obligations and, if so, to what extent. Additionally, the court considered the objective seriousness of the offence, the presence of mitigating and aggravating factors, and the utility of the defendant’s plea of guilty. The court also examined the necessity for general and specific deterrence, as well as the degree of remorse and contrition shown by the defendant.

In reaching its decision, the court thoroughly evaluated the evidence presented, including the nature of the breach, the potential consequences, and the measures taken by the defendant post-incident. The court determined that the incident was of significant severity, warranting a substantial penalty. However, the defendant’s early guilty plea was acknowledged, resulting in a 25% reduction in the fine. After considering all factors, the court found that an appropriate penalty was a fine of $120,000, reduced to $90,000 due to the guilty plea. Furthermore, 50% of the fine was designated to be paid to the prosecutor, and the defendant was ordered to cover the prosecution’s costs.

Orders

Orders of the court

(1) The defendant is convicted.

(2) The appropriate fine for the defendant would be $120,000.00 and that will be reduced by 25% to reflect a plea of guilty.

(3) I accordingly order the defendant to pay a fine of $90,000.00.

(4) 50% of the fine imposed is to be paid to the prosecutor.

(5) 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 Hadcon Constructions Pty Ltd [2020] NSWDC 316
Hearing dates:	4 June 2020
Date of orders:	19 June 2020
Decision date:	19 June 2020
Jurisdiction:	Criminal
Before:	Strathdee, DCJ
Decision:	(1) The defendant is convicted. (2) The appropriate fine for the defendant would be $120,000.00 and that will be reduced by 25% to reflect a plea of guilty. (3) I accordingly order the defendant to pay a fine of $90,000.00. (4) 50% of the fine imposed is to be paid to the prosecutor. (5) 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 a business – risk of death or serious injury SENTENCE – objective seriousness- mitigating factors-aggravating factors- plea of guilty – discount of 25% because of the utility of the plea -general deterrence-specific deterrence- appropriate penalty-remorse - contrition COSTS – prosecution costs
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2011 (NSW)
Cases Cited:	Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) NSWLR 338 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Kirk v Industrial Commission of New South Wales [2010] HCA 1 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464 Markarian v The Queen (2005) 228 CLR 357 Morrison v Powercoal Pty Limited & Anor (No.3) [2005] NSWIRComm 61 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 Orbit Drilling v The Queen [2012] VSCA 82 R v Cage [2006] NSWCCA 304 R v Miria [2009] NSWCCA 68 SafeWork NSW v Emu Group Pty Limited [2019] NSWDC 537 SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632 SafeWork NSW v Orbit Formwork Pty Limited [2019] NSWDC 685 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
Texts Cited:	1995 Guidelines for Scaffolding Australian Standard 2359: Powered Industrial Trucks (2013) General Guide for Scaffolds and Scaffolding Work in July 2014 Guide to Scaffold Inspection and Maintenance” dated July 2014 SafeWork NSW brief guide ‘Toolbox Talk: Take Forklifting Safety Seriously’ SafeWork NSW Code of Practice ‘How to Manage Work, Health and Safety Risks’ (December 2011) SafeWork NSW Code of Practice ‘Managing the Risks of Plant in the Workplace’ (July 2014) SafeWork NSW’s Code of Practice Managing the Risk of Falls at Workplaces WorkCover Safety Alert ‘Working with or around Mobile Plant’
Category:	Sentence
Parties:	SafeWork New South Wales (Prosecutor) Hadcon Constructions Pty Ltd (Defendant)
Representation:	Counsel: Mr N Read appeared for the Prosecutor Mr M Cahill appeared for the Defendant Solicitors: SafeWork NSW…