SafeWork NSW v HD Projects Pty Ltd - [2021] NSWDC 126

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v HD Projects Pty Ltd [2021] NSWDC 126
Hearing dates: 15 April 2021
Date of orders: 16 April 2021
Decision date: 16 April 2021
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
1   HD Projects Pty Ltd is convicted.
2   I impose a fine of $170,000.
3   The defendant is to pay the prosecutor’s costs of the proceedings as agreed or assessed. The defendant entered a plea of not guilty at an early stage of the proceedings. A number of adjournments were sought by the prosecutor to accommodate delays in the related proceedings against AC. The parties, and if necessary a costs assessor, should reflect these circumstances in arriving at the appropriate quantum of costs.
4 I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is paid to the prosecutor.

Catchwords:
CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – workers injured
SENTENCING – deterrence – aggravating factors – mitigating factors – good prospects of rehabilitation – remorse - parity

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Work Health and Safety Act 2011

Cases Cited:
Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
Green v The Queen (2011) 244 CLR 462
R v Thangavelautham [2016] NSWCCA 141
R v Youkhana [2004] NSWCCA 412
SafeWork NSW v HD Projects Pty Ltd [2020] NSWDC 765

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
H D Projects Pty Ltd (Defendant)
Representation:
Counsel: M Moir (Prosecutor)
M Baroni (Defendant)
Solicitors: Legal, Department of Customer Service
(Prosecutor)
Leigh Virtue & Associates (Defendant)

File Number(s): 2019/391940
Publication restriction: None

Judgment

Introduction

HD Projects Pty Ltd (the defendant) appears for sentence after it was found guilty after trial of an offence contrary to s 32 Work Health and Safety Act 2011 (the Act).
The Court’s reasons for the finding of guilt are set out in its decision SafeWork NSW v HD Projects Pty Ltd [2020] NSWDC 765 (the verdict judgment).
The maximum penalty for the offence is a fine of $1.5 million.

Facts

The following relevant matters are extracted from the verdict judgment. [1]
1. For contextual purpose, to the extent that there is any inconsistency or omissions in this judgment, the findings made in the verdict judgment prevail.
The defendant was contracted by Arise Constructions Pty Ltd (Arise) to install AFS Logicwall panels (panels) at a building site in Kellyville (the site). The panels were being lifted by a mobile crane operated by another contracted entity, All Cranes 4 Hire Pty Ltd (AC).
On 15 December 2017, a pack of panels were attached onto a Pallet Hook and loaded onto the crane by Marc Dessens, a labour hire employee that had been engaged by the defendant. Mr Dessens was not a qualified dogman. As the panels were lifted, the bottom panel broke through the plastic wrapping and fell. The 76kg panel injured two contracted workers on…

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.

Continue reading SafeWork NSW v HD Projects Pty Ltd

Details

AGLC: SafeWork NSW v HD Projects Pty Ltd [2021] NSWDC 126
Case: [2021] NSWDC 126
Decision Date: 16 April 2021

CaseChat Overview and Summary

SafeWork NSW prosecuted HD Projects Pty Ltd in relation to an incident in which workers were injured on a construction site. The nature of the dispute centred on the alleged failure of HD Projects Pty Ltd to ensure the health and safety of workers on the site, which resulted in injuries. The court heard evidence from various witnesses, including those from SafeWork NSW and HD Projects Pty Ltd, as well as expert testimony regarding workplace safety standards and compliance. The case was heard in the Industrial Relations Commission of New South Wales. The primary legal issues for the court to determine were whether HD Projects Pty Ltd breached its duty under work health and safety legislation, and if so, the appropriate penalty for such a breach. The court was required to consider the nature and extent of the risk posed to the workers, the measures taken or not taken by HD Projects Pty Ltd to mitigate these risks, and the resulting injuries to the workers.

The court found that HD Projects Pty Ltd had indeed failed in its duty to ensure the safety of its workers, resulting in their injuries. The court noted several aggravating factors, including the severity of the injuries and the preventable nature of the incident. However, the court also recognised mitigating factors such as the company’s cooperation during the proceedings and its commitment to improving workplace safety standards. The court emphasised the importance of deterrence and ensuring that similar incidents do not recur in the future. The court ultimately imposed a fine of $170,000 on HD Projects Pty Ltd and ordered the company to pay the prosecutor's costs of the proceedings. The court also ordered that 50% of the fine be paid to the prosecutor under the Fines Act 1996. The decision reflects the court's balanced approach, taking into account both the seriousness of the breach and the mitigating factors presented by HD Projects Pty Ltd.

Orders

Orders of the court

1 HD Projects Pty Ltd is convicted.

2 I impose a fine of $170,000.

3 The defendant is to pay the prosecutor’s costs of the proceedings as agreed or assessed. The defendant entered a plea of not guilty at an early stage of the proceedings. A number of adjournments were sought by the prosecutor to accommodate delays in the related proceedings against AC. The parties, and if necessary a costs assessor, should reflect these circumstances in arriving at the appropriate quantum of costs.

4 I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is paid to the prosecutor.

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	SafeWork NSW v HD Projects Pty Ltd [2021] NSWDC 126
Hearing dates:	15 April 2021
Date of orders:	16 April 2021
Decision date:	16 April 2021
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1 HD Projects Pty Ltd is convicted. 2 I impose a fine of $170,000. 3 The defendant is to pay the prosecutor’s costs of the proceedings as agreed or assessed. The defendant entered a plea of not guilty at an early stage of the proceedings. A number of adjournments were sought by the prosecutor to accommodate delays in the related proceedings against AC. The parties, and if necessary a costs assessor, should reflect these circumstances in arriving at the appropriate quantum of costs. 4 I order pursuant to s 122(2) Fines Act 1996 that 50% of the fine is paid to the prosecutor.
Catchwords:	CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – workers injured SENTENCING – deterrence – aggravating factors – mitigating factors – good prospects of rehabilitation – remorse - parity
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Work Health and Safety Act 2011
Cases Cited:	Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 Green v The Queen (2011) 244 CLR 462 R v Thangavelautham [2016] NSWCCA 141 R v Youkhana [2004] NSWCCA 412 SafeWork NSW v HD Projects Pty Ltd [2020] NSWDC 765
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) H D Projects Pty Ltd (Defendant)
Representation:	Counsel: M Moir (Prosecutor) M Baroni (Defendant) Solicitors: Legal, Department of Customer Service (Prosecutor) Leigh Virtue & Associates (Defendant)
File Number(s):	2019/391940
Publication restriction:	None