SafeWork NSW v MACFIN Building Solutions Pty Ltd - [2020] NSWDC 776

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v MACFIN Building Solutions Pty Ltd [2020] NSWDC 776
Hearing dates: 27 November 2020
Date of orders: 18 December 2020
Decision date: 18 December 2020
Jurisdiction: Criminal
Before: Strathdee DCJ
Decision:
(1)   The defendant is convicted.
(2)   The appropriate fine is $200,000.00 and that will be reduced by 25% to reflect a plea of guilty.
(3)   Accordingly, I order defendant pay a fine of $150,000.00.
(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.
(5)   I make no order as to costs.

Catchwords:
CRIME – work health and safety – risk of death or serious injury – duty of person undertaking business
PROCEDURAL – reasonable practicability – likelihood of risk – knowledge of the risk – what the defendant ought reasonably have known
OTHER – fall from height in unprotected void – risk of the dangers posed by the void were known – failure to adequately implement work health and safety management system plan – inadequate fall protection

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) 93 NSWLR 338
Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610
Environmental Protection Authority v Barnes [2006] NSWCCA 246
Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384
Inspector Howard v BaulderstoneHornibrook Pty Ltd [2009] NSWIRComm 92
Kirk v Industrial Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1
LawrensonDiecasting 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; Smith 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
Veen v R (No. 2) (1988) 164 CLR 465
WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700

Texts Cited:
SafeWork Australia Managing the Risk of Falls at the Workplace Code of Practice (April 2016)
WorkCover Preventing Falls in Housing Construction Code of Practice (July 2014)

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
MACFIN Building Solutions Pty Ltd (Defendant)
Representation:
Counsel: Ms S Callan SC with Mr Hawila (Prosecutor)
Solicitors: Ms B Ng, Department of Customer Service
Mr D Finlay (Company Director of Defendant - in person, unrepresented)

File Number(s): 2019/00178325
Publication restriction: Nil

JUDGMENT
On 31 August 2020, MACFIN Building…

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 776
Decision Date: 18 December 2020

CaseChat Overview and Summary

SafeWork NSW brought an action against MACFIN Building Solutions Pty Ltd in relation to a serious incident involving a fall from height in an unprotected void at a construction site. The matter was heard in the Local Court of New South Wales. The dispute centred around the defendant's failure to implement adequate work health and safety measures, leading to the risk of death or serious injury to workers. The court had to determine whether the defendant's actions breached their duty under work health and safety legislation and whether the risk of the fall was reasonably practicable to mitigate.

The court considered the legal principles surrounding the reasonable practicability of mitigating risks, the likelihood of the risk materialising, and the knowledge or what ought reasonably to have been known by the defendant. It was established that the risk of the dangers posed by the void were known to the defendant, and there was a failure to adequately implement the work health and safety management system plan, specifically in relation to fall protection. The court found that the defendant's actions constituted a breach of their duty, as they failed to take all reasonably practicable steps to ensure the safety of workers.

The defendant was convicted and fined $200,000.00, reduced by 25% due to the plea of guilty, resulting in a fine of $150,000.00. Under section 122(2) of the Fines Act 1996 (NSW), 50% of the fine was to be paid to the prosecutor. The court did not make an order as to costs. This decision underscores the importance of adherence to work health and safety standards in construction sites to prevent serious injuries and fatalities.

Orders

Orders of the court

(1) The defendant is convicted.

(2) The appropriate fine is $200,000.00 and that will be reduced by 25% to reflect a plea of guilty.

(3) Accordingly, I order defendant pay a fine of $150,000.00.

(4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor.

(5) I make no order as to costs.

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 MACFIN Building Solutions Pty Ltd [2020] NSWDC 776
Hearing dates:	27 November 2020
Date of orders:	18 December 2020
Decision date:	18 December 2020
Jurisdiction:	Criminal
Before:	Strathdee DCJ
Decision:	(1) The defendant is convicted. (2) The appropriate fine is $200,000.00 and that will be reduced by 25% to reflect a plea of guilty. (3) Accordingly, I order defendant pay a fine of $150,000.00. (4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. (5) I make no order as to costs.
Catchwords:	CRIME – work health and safety – risk of death or serious injury – duty of person undertaking business PROCEDURAL – reasonable practicability – likelihood of risk – knowledge of the risk – what the defendant ought reasonably have known OTHER – fall from height in unprotected void – risk of the dangers posed by the void were known – failure to adequately implement work health and safety management system plan – inadequate fall protection
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) 93 NSWLR 338 Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Environmental Protection Authority v Barnes [2006] NSWCCA 246 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Inspector Howard v BaulderstoneHornibrook Pty Ltd [2009] NSWIRComm 92 Kirk v Industrial Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1 LawrensonDiecasting 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; Smith 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 Veen v R (No. 2) (1988) 164 CLR 465 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700
Texts Cited:	SafeWork Australia Managing the Risk of Falls at the Workplace Code of Practice (April 2016) WorkCover Preventing Falls in Housing Construction Code of Practice (July 2014)
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) MACFIN Building Solutions Pty Ltd (Defendant)
Representation:	Counsel: Ms S Callan SC with Mr Hawila (Prosecutor) Solicitors: Ms B Ng, Department of Customer Service Mr D Finlay (Company Director of Defendant - in person, unrepresented)
File Number(s):	2019/00178325
Publication restriction:	Nil