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SafeWork NSW v Pendle Ham and Bacon Pty Ltd

SafeWork NSW v Pendle Ham and Bacon Pty Ltd

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Case Copied 17 March 2025 52 min read

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: SafeWork NSW v Pendle Ham and Bacon Pty Ltd [2025] NSWDC 63
Hearing dates: 25, 26, 27 and 28 March 2024, 5, 9, 16 and 17 September 2024; 3 and 20 October 2024, 19 December 2024
Date of orders: 17 March 2025
Decision date: 17 March 2025
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
(1)   The prosecutor has not proved beyond reasonable doubt the elements of the Category 1 offences pleaded against the General Partner, the Limited Partner and the Labour Hire Company.
(2)   The prosecutor has not proved beyond reasonable doubt the elements of the Category 2 offences pleaded against the Limited Partner.
(3)   The prosecutor has not proved beyond reasonable doubt the elements of the Category 2 offence pleaded against Michael Zammit.
(4)   In relation to the pleas of guilty to the Category 2 offences entered by the General Partner and the Labour Hire Company on the basis of the failure to take the steps set out in [12]-[13], I am satisfied beyond reasonable doubt that the General Partner and the Labour Hire Company also failed to conduct an adequate risk assessment for the reasons set out in [476]-[485] and they should be sentenced on that additional particular.
(5)   I will list the matter on 31 March 2025 to fix a date for sentence for the General Partner and the Labour Hire Company for the Category 2 offences and to make final orders in relation to the other charges.

Catchwords:
CRIME – prosecution – work health and safety – definition of person conducting a business or undertaking (PCBU) – risk of death or serious injury – injury to worker
EVIDENCE – admissions – criminal proceedings - agents and employees – reliability
WORK HEALTH AND SAFETY – fall from height – likelihood of risk occurring – risk of workers falling from a height - category 1 offences – recklessness – gross negligence – category 2 offences – strict liability – breach of s 19(1) and s 20 duty – duty owed by a worker s 28(b) – breach of s 28(b) duty – causation of exposure to risk of death or serious injury
PARTNERSHIPS AND JOINT VENTURES – limited partnership – contract of partnership – liability of limited partner for criminal conduct of general partner – meaning of take part in business of the partnership

Legislation Cited:
A New Tax System (Goods and Services Tax) Act 1999 (Cth)
Consumer Protection Act 1969
Corporations Act 2001 (Cth)
Evidence Act 1995
Income Tax Assessment Act 1997 (Cth)
Interpretation Act 1987
Limited Partnership Act 1907 (UK)
Occupational Health and Safety Act 2000
Partnership Act 1890 (UK)
Partnership Act 1892
Taxation Administration Act 1953 (Cth)
Trade Descriptions Act 1968 (UK)
Work Health and Safety Act 2011

Cases Cited:
Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27
Allianz Global Investors GmbH v Barclays Bank PLC [2023] 1…

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: [2025] NSWDC 63
Decision Date: 17 March 2025

CaseChat Overview and Summary

SafeWork NSW brought a prosecution against Pendle Ham and Bacon Pty Ltd, a limited partnership, and two individuals, alleging breaches of work health and safety laws in relation to a worker's fall from height. The District Court of New South Wales heard the case, focusing on whether the defendants were liable for the worker's injury under the Work Health and Safety Act 2011. The central issue was whether the defendants were each a person conducting a business or undertaking (PCBU) under the Act and if they breached their duties to prevent the risk of the worker falling.

The court examined the definitions and scope of PCBUs, considering the roles of the general and limited partners, and the labour hire company. It evaluated the evidence, including admissions and the reliability of testimonies, to determine if the defendants were criminally liable for the worker's exposure to the risk of death or serious injury. The court also assessed whether the defendants had breached their duties under sections 19(1), 20, and 28(b) of the Act.

After considering the evidence and legal arguments, the court found that the prosecutor had not proven beyond reasonable doubt the elements of the Category 1 offences against the general partner, the limited partner, and the labour hire company. Similarly, the prosecutor failed to prove the Category 2 offences against the limited partner and Michael Zammit. However, the court concluded that the general partner and the labour hire company failed to conduct an adequate risk assessment, warranting additional sentencing considerations. The court scheduled a sentencing hearing for 31 March 2025 to address the remaining charges against the general partner and the labour hire company.

Orders

Orders of the court

(1) The prosecutor has not proved beyond reasonable doubt the elements of the Category 1 offences pleaded against the General Partner, the Limited Partner and the Labour Hire Company.

(2) The prosecutor has not proved beyond reasonable doubt the elements of the Category 2 offences pleaded against the Limited Partner.

(3) The prosecutor has not proved beyond reasonable doubt the elements of the Category 2 offence pleaded against Michael Zammit.

(4) In relation to the pleas of guilty to the Category 2 offences entered by the General Partner and the Labour Hire Company on the basis of the failure to take the steps set out in [12]-[13], I am satisfied beyond reasonable doubt that the General Partner and the Labour Hire Company also failed to conduct an adequate risk assessment for the reasons set out in [476]-[485] and they should be sentenced on that additional particular.

(5) I will list the matter on 31 March 2025 to fix a date for sentence for the General Partner and the Labour Hire Company for the Category 2 offences and to make final orders in relation to the other charges.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	SafeWork NSW v Pendle Ham and Bacon Pty Ltd [2025] NSWDC 63
Hearing dates:	25, 26, 27 and 28 March 2024, 5, 9, 16 and 17 September 2024; 3 and 20 October 2024, 19 December 2024
Date of orders:	17 March 2025
Decision date:	17 March 2025
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	(1) The prosecutor has not proved beyond reasonable doubt the elements of the Category 1 offences pleaded against the General Partner, the Limited Partner and the Labour Hire Company. (2) The prosecutor has not proved beyond reasonable doubt the elements of the Category 2 offences pleaded against the Limited Partner. (3) The prosecutor has not proved beyond reasonable doubt the elements of the Category 2 offence pleaded against Michael Zammit. (4) In relation to the pleas of guilty to the Category 2 offences entered by the General Partner and the Labour Hire Company on the basis of the failure to take the steps set out in [12]-[13], I am satisfied beyond reasonable doubt that the General Partner and the Labour Hire Company also failed to conduct an adequate risk assessment for the reasons set out in [476]-[485] and they should be sentenced on that additional particular. (5) I will list the matter on 31 March 2025 to fix a date for sentence for the General Partner and the Labour Hire Company for the Category 2 offences and to make final orders in relation to the other charges.
Catchwords:	CRIME – prosecution – work health and safety – definition of person conducting a business or undertaking (PCBU) – risk of death or serious injury – injury to worker EVIDENCE – admissions – criminal proceedings - agents and employees – reliability WORK HEALTH AND SAFETY – fall from height – likelihood of risk occurring – risk of workers falling from a height - category 1 offences – recklessness – gross negligence – category 2 offences – strict liability – breach of s 19(1) and s 20 duty – duty owed by a worker s 28(b) – breach of s 28(b) duty – causation of exposure to risk of death or serious injury PARTNERSHIPS AND JOINT VENTURES – limited partnership – contract of partnership – liability of limited partner for criminal conduct of general partner – meaning of take part in business of the partnership
Legislation Cited:	A New Tax System (Goods and Services Tax) Act 1999 (Cth) Consumer Protection Act 1969 Corporations Act 2001 (Cth) Evidence Act 1995 Income Tax Assessment Act 1997 (Cth) Interpretation Act 1987 Limited Partnership Act 1907 (UK) Occupational Health and Safety Act 2000 Partnership Act 1890 (UK) Partnership Act 1892 Taxation Administration Act 1953 (Cth) Trade Descriptions Act 1968 (UK) Work Health and Safety Act 2011
Cases Cited:	Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27 Allianz Global Investors GmbH v Barclays Bank PLC [2023] 1…