SafeWork NSW v Kayrouz Constructions Pty Limited - [2020] NSWDC 77

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Kayrouz Constructions Pty Limited [2020] NSWDC 77
Hearing dates: 20 March 2020
Date of orders: 03 April 2020
Decision date: 03 April 2020
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Permit the defendant to rely upon the affidavit evidence already filed, subject to any specific objections to such evidence.
(2)   Direct the prosecutor and the defendant to file a Joint Schedule of Agreed and Contested Facts by 4 May 2020.
(3)   List the matter for directions before me at 9.30am on 11 May 2020 with a view to fixing a sentence hearing date.

Catchwords:
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business to ensure so far as was reasonably practicable the health and safety of workers– whether failure to comply with duty – whether failure exposed an individual to a risk of death or serious injury
SENTENCING – plea of guilty – plea to elements of offence – disputed facts – whether plea of guilty is an admission of all particulars of reasonably practicable measures pleaded in Summons – particulars pleaded in the alternative
Legislation Cited: Work Health and Safety Act 2011 (NSW), ss 19, 32
Cases Cited: Duffy v R [2009] NSWCCA 304
GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198
R v O’Neill [1979] 2 NSWLR 582
Strbak v The Queen [2020] HCA 10
Category: Procedural and other rulings
Parties: SafeWork NSW (Prosecutor)
Kayrouz Constructions Pty Limited (Defendant)
Representation:
Counsel:
M Scott (Prosecutor)
M Gerace (Defendant)
Solicitors:
SafeWork NSW (Prosecutor)
Sachs Gerace lawyers (Defendant)

File Number(s): 2018/294050

Judgment

On 21 November 2016 Mr Christopher Ilioglou was working as a plumber on a construction site in Kogarah. Kayrouz Constructions Pty Limited (Kayrouz) was the principal contractor. In the course of lifting lengths of copper pipe up to level 4 of the site Mr Ilioglou suffered serious injuries when the pipes came into contact with energised overhead power lines.
SafeWork NSW charged Kayrouz by a Summons filed on 24 September 2018 that being a person conducting a business or undertaking who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (the Act) to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, it did fail to comply with that duty and the failure to comply with that duty exposed workers, in particular Mr Ilioglou, to a risk of death or serious injury contrary to s 32 of the Act.

Background

The matter came before this court nine times for directions before Kayrouz pleaded guilty on 11 November 2019. The matter was stood over from time to time as the parties were in negotiations concerning a possible Enforceable Undertaking. The notation made on the court file when the plea of guilty was entered is as follows:

“(1) Defendant enters a…

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 77
Decision Date: 03 April 2020

CaseChat Overview and Summary

In the matter of SafeWork NSW versus Kayrouz Constructions Pty Limited, the defendant pleaded guilty to an offence under section 27 of the Occupational Health and Safety Act 2000 (NSW). The dispute involved the prosecution of the defendant for failing to ensure, as far as was reasonably practicable, the health and safety of workers, thereby exposing an individual to a risk of death or serious injury. The case was heard in the Local Court of New South Wales.

The primary legal issues the court needed to resolve were whether the defendant had failed to comply with its duty under the Act and whether such failure exposed an individual to a risk of death or serious injury. The court also had to consider whether the plea of guilty constituted an admission of all particulars of reasonably practicable measures as pleaded in the summons. The particulars were pleaded in the alternative, and the defendant contested certain facts.

The court permitted the defendant to rely on the affidavit evidence already filed, subject to any objections. It directed the prosecutor and the defendant to file a Joint Schedule of Agreed and Contested Facts by 4 May 2020. The matter was listed for directions to be heard before the court at 9.30am on 11 May 2020, with a view to fixing a sentencing hearing date. The court did not make any final orders in this interim decision but sought to clarify the facts and evidence before proceeding with sentencing.

Orders

Orders of the court

(1) Permit the defendant to rely upon the affidavit evidence already filed, subject to any specific objections to such evidence.

(2) Direct the prosecutor and the defendant to file a Joint Schedule of Agreed and Contested Facts by 4 May 2020.

(3) List the matter for directions before me at 9.30am on 11 May 2020 with a view to fixing a sentence hearing date.

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 Kayrouz Constructions Pty Limited [2020] NSWDC 77
Hearing dates:	20 March 2020
Date of orders:	03 April 2020
Decision date:	03 April 2020
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Permit the defendant to rely upon the affidavit evidence already filed, subject to any specific objections to such evidence. (2) Direct the prosecutor and the defendant to file a Joint Schedule of Agreed and Contested Facts by 4 May 2020. (3) List the matter for directions before me at 9.30am on 11 May 2020 with a view to fixing a sentence hearing date.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business to ensure so far as was reasonably practicable the health and safety of workers– whether failure to comply with duty – whether failure exposed an individual to a risk of death or serious injury SENTENCING – plea of guilty – plea to elements of offence – disputed facts – whether plea of guilty is an admission of all particulars of reasonably practicable measures pleaded in Summons – particulars pleaded in the alternative
Legislation Cited:	Work Health and Safety Act 2011 (NSW), ss 19, 32
Cases Cited:	Duffy v R [2009] NSWCCA 304 GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198 R v O’Neill [1979] 2 NSWLR 582 Strbak v The Queen [2020] HCA 10
Category:	Procedural and other rulings
Parties:	SafeWork NSW (Prosecutor) Kayrouz Constructions Pty Limited (Defendant)
Representation:	Counsel: M Scott (Prosecutor) M Gerace (Defendant) Solicitors: SafeWork NSW (Prosecutor) Sachs Gerace lawyers (Defendant)
File Number(s):	2018/294050