Safework NSW v Orbit Formwork Pty Limited - [2019] NSWDC 685

District Court

New South Wales

Medium Neutral Citation: Safework NSW v Orbit Formwork Pty Ltd [2019] NSWDC 685
Hearing dates: 18 November 2019
Date of orders: 22 November 2019
Decision date: 22 November 2019
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   The offender is convicted.
(2)   The appropriate fine is $240,000 but that will be reduced by 25% to reflect the plea of guilty.
(3)   Order the offender to pay a fine of $180,000.
(4) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
(5)   Order the offender to pay the prosecutor’s costs as agreed or assessed.

Catchwords:
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury

SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty

COSTS - prosecution costs
OTHER – fall from height over unprotected edge
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: Baumer v R [1988] HCA 67; (1988) 166 CLR 51
Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
BW v R [2011] NSWCCA 176
Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Wilkinson (No. 5) [2009] NSWSC 432
Safework NSW v Emu Group Pty Limited [2019] NSWDC 537
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
Texts Cited: Australian Standard AS 4494 Temporary Edge Protection
Formwork, Code of Practice 1998, WorkCover NSW
General Guide for Formwork and Falsework, SafeWork Australia, July 2014
Guide to Formwork, SafeWork Australia, July 2014
Managing the Risk of Falls at Workplaces Code of Practice, April 2016
Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Orbit Formwork Pty Ltd (Defendant)
Representation:
Counsel:
P McEniery (Prosecutor)
R Reitano (Defendant)
Solicitors:
SafeWork NSW (Prosecutor)
Takchi & Associates(Defendant)

File Number(s): 2019/95581

Judgment

This is yet another case involving a fall from height resulting in serious injury. In previous sentencing judgments this court has remarked upon the high number of such cases. It is almost an epidemic. The prosecutor tendered statistics (PX2) showing that in the three years between 1 July 2016 and 30 June 2019 there were 1,414 falls related incidents reported to Safework NSW, an average of nine a week. In that period there were 22 deaths. In many of the cases which have come…

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: [2019] NSWDC 685
Decision Date: 22 November 2019

CaseChat Overview and Summary

Safework NSW initiated proceedings against Orbit Formwork Pty Limited in relation to an incident where a worker fell from a height over an unprotected edge. The nature of the dispute was centred around the obligations under work health and safety laws, specifically concerning the duty of care owed by employers to prevent risks that could cause death or serious injury. The case was heard in the relevant court where the presiding judge had to determine several legal issues, including the assessment of the objective seriousness of the offence, the mitigating and aggravating factors, and the appropriate penalty to be imposed.

The court identified that the offence involved a significant breach of work health and safety laws, which had the potential to cause serious injury or death. The legal issues that the court needed to address included the extent to which the company’s conduct fell short of the required duty of care, the objective seriousness of the incident, and the appropriate penalty considering factors such as the plea of guilty, general deterrence, and specific deterrence. The court also had to determine the costs associated with the prosecution.

In rendering its decision, the court found that the company was guilty of the offence. It assessed the objective seriousness of the offence and took into account the mitigating factors, such as the company’s plea of guilty, and the aggravating factors, such as the potential for serious injury or death. The court decided that a fine of $240,000 was appropriate but reduced it by 25% to reflect the plea of guilty, resulting in a fine of $180,000. Additionally, the court ordered that 50% of the fine be paid to the prosecutor and that the company pay the prosecution's costs as agreed or assessed. The court aimed to ensure both general and specific deterrence through the penalty imposed.

Orders

Orders of the court

(1) The offender is convicted.

(2) The appropriate fine is $240,000 but that will be reduced by 25% to reflect the plea of guilty.

(3) Order the offender to pay a fine of $180,000.

(4) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

(5) Order the offender 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 Orbit Formwork Pty Ltd [2019] NSWDC 685
Hearing dates:	18 November 2019
Date of orders:	22 November 2019
Decision date:	22 November 2019
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) The offender is convicted. (2) The appropriate fine is $240,000 but that will be reduced by 25% to reflect the plea of guilty. (3) Order the offender to pay a fine of $180,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. (5) Order the offender to pay the prosecutor’s costs as agreed or assessed.
Catchwords:	CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty COSTS - prosecution costs OTHER – fall from height over unprotected edge
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:	Baumer v R [1988] HCA 67; (1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] NSWSC 432 Safework NSW v Emu Group Pty Limited [2019] NSWDC 537 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
Texts Cited:	Australian Standard AS 4494 Temporary Edge Protection Formwork, Code of Practice 1998, WorkCover NSW General Guide for Formwork and Falsework, SafeWork Australia, July 2014 Guide to Formwork, SafeWork Australia, July 2014 Managing the Risk of Falls at Workplaces Code of Practice, April 2016
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Orbit Formwork Pty Ltd (Defendant)
Representation:	Counsel: P McEniery (Prosecutor) R Reitano (Defendant) Solicitors: SafeWork NSW (Prosecutor) Takchi & Associates(Defendant)
File Number(s):	2019/95581