SafeWork NSW v Pendle Ham and Bacon Pty Ltd

[2025] NSWDC 63

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 All ER (Comm) 20

Aubrey v R (2017) 260 CLR 305

Australian Competition & Consumer Commission v Leahy Petroleum Pty Ltd (2007) FCR 321

Baiada Poultry Pty Ltd v R (2012) 246 CLR 92

Boland v Safe is Safe Pty Ltd [2017] SAIRC 17

Bulga Underground Operations v Nash [2016] NSWCCA 37

Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467

Certain Limited Partners in Henderson PFI Secondary Fund II LP (a firm) v Henderson PFI Secondary Fund II LP (a firm) [2013] QB 934

Certain Lloyd’s Underwriters v Cross (2012) 87 ALJR 131

Clode v Barnes [1974] 1 WLR 544

Collins v Poole (1977) 2 TPC 173

Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209

Construction Forestry Maritime Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1

Cox v Hickman (1860) 8 HL 268

Davis v Langdon [1911] 11 SR (NSW) 149

Deloitte Touche Tohmatsu (A Firm) v Sadie Ville Pty Ltd as trustee for the Sadie Ville Superannuation Fund [2020] FCAFC 23

Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50

Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676

Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503

Federal Commissioner of Taxation v Lutovi Investments Pty Ltd (1978) 140 CLR 434

Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267

Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288

In re Barnard: Martins Bank v Trustee [1932] 1 Ch D 269

Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197

Inversiones Friera SL v Colyzeo Investors II LP [2012] Bus LR 1136

Johnson v Mackinnon (No 2) [2022] NSWCA 22

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531

Kuhl v Zurich Financial Services Australia Pty Ltd (2011) 243 CLR 361

Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117

Maloney v Commissioner for Railways (1978) 18 ALR 147

Neindorf v Junkovic (2005) 80 ALJR 341

Nelson v John Lysaght (Australian Ltd) (1975) 132 CLR 201

Orr v Cudal Lime Products Pty Ltd [2018] NSWDC 27

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

R v ACR Roofing Pty Ltd (2004) 11 VR 187

R v Board of Trustees of the Science Museum [1993] 1 WLR 1171

R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321

R v Cunningham [1957] 2 QB 396

R v Horton (1998) 104 A Crim R 306

R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332

R v Newth [1974] 2 NZLR 760

Re Bolton; Ex Parte Beane (1987) 162 CLR 514

Re Garwood’s Trusts: Garwood v Paynter [1903] 1 Ch D 236

Riley v Director of Public Prosecutions [2017] 1 WLR 505

Royall v The Queen (1991) 172 CLR 378

SafeWork NSW v Astute Earthworks Pty Ltd [2023] NSWDC 131

Safework NSW v Scharfe [2021] NSWDC 260

SafeWork NSW v Tamex Transport Services Pty Ltd [2016] NSWDC 295

Saunders Civilbuild Pty Ltd v SafeWork NSW [2023] NSWCCA 261

Seltsam v McNeill [2006] NSWCA 158

Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316

Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304

Smith v Broken Hill Pty Ltd (1957) 97 CLR 337

State of New South Wales v Fahy (2007) 232 CLR 486

Strother v 3469420 Canada Inc [2007] 2 SCR 177

Tame v New South Wales (2002) 211 CLR 317

Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015

Taylor v Owners of Strata Plan 11564 (2014) 253 CLR 531

The Queen vWelch (1875) 1 QBD 23

Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94

Vairy v Wyong Shire Council (2005) 223 CLR 426

Ward v Newalls Insulation Co Ltd [1998] 1 WLR 1722

Wentworth Securities Ltd v Jones [1980] AC 74

Western Sydney Local Health District v SafeWork NSW [2024] NSWCCA 153

Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428

WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453

WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166

WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80

WorkPac Pty Ltd v Rossato [2021] HCA 23

WorkSafe New Zealand v Waste Management NZ Ltd [2021] NZHC 3444

Wyong Shire Council v Shirt (1980) 146 CLR 40

ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2

Texts Cited:

Banks, Lindley & Banks on Partnership, 21st Ed, Thomson Reuters, 2022

Macquarie Dictionary

Mann, “Limited partnerships: A new Approach” (1992) AMPLA Yearbook 379

NSW Government Code of Practice: How to manage work health and safety risks, August 2019

SafeWork Australia – Safe work on roofs: Information Sheet, January 2016

SafeWork NSW – Code of Practice: Managing the risks of falls at workplaces, August 2019

SafeWork NSW – Falls through skylights and plastic roof sheeting Safety Alert, 14 September 2018

SafeWork NSW – Incident Information Release: More workers falling through roofs in NSW, 4 August 2020

WorkCover NSW – Safe Work on Roofs – Part 1 Commercial and Industrial Buildings, Code of Practice 2009

Category:

Principal judgment

Parties:

SafeWork NSW (Prosecutor)
Pendle Ham & Bacon Curers Pty Ltd Defendant)
Pendle Ham & Bacon Pty Ltd (Defendant)
PHBC LH Pty Ltd (Defendant)
Michael Zammit (Defendant)

Representation:

Counsel:
B Docking (Prosecutor)
I Taylor SC with M Shume (Defendants) (March 2024)
M Shume (Defendants) (September- December 2024)
P Boulten SC (Defendants) (Written Submissions October 2024)

Solicitors:
Department of Customer Service (Prosecutor)
Hall & Wilcox (Defendants)

File Number(s):

Pendle Ham & Bacon Curers Pty Ltd - 2023/160812 and 2023/160871
Pendle Ham & Bacon Pty Ltd - 2023/160834 and 2023/160857
PHBC LH Pty Ltd - 2023/160882
Michael Zammit - 2023/160822

Publication restriction:

None

Judgment

Introduction

The charges

1. Pendle Ham & Bacon Pty Ltd (the General Partner) has pleaded not guilty to the following Category 1 offences:

1. that as a person with a health and safety duty under s 19(1) Work Health and Safety Act 2011 (the Act), it without reasonable excuse engaged in conduct that exposed Vinoth Shanmugalingam, Thavasthasan Ponnuthurai and Sedhurajan Velusamy (the workers) to a risk of death or serious injury and it engaged in the conduct with gross negligence or was reckless to the risk to an individual of death or serious injury, contrary to s 31 of the Act; and

2. that as a person with a health and safety duty under s 20 of the Act, it without reasonable excuse engaged in conduct that exposed the workers to a risk of death or serious injury and it engaged in the conduct with gross negligence or was reckless to the risk to an individual of death or serious injury, contrary to s 31 of the Act.

2. The General Partner has pleaded guilty to the following Category 2 offences, which were pleaded in the alternative to the Category 1 offences:

1. that as a person with a health and safety duty under s 19(1) of the Act that it failed to comply with that duty and thereby exposed the workers to a risk of death or serious injury, contrary to s 32 of the Act; and

2. that as a person with a health and safety duty under s 20 of the Act that it failed to comply with that duty and thereby exposed the workers to a risk of death or serious injury, contrary to s 32 of the Act.

3. Pendle Bacon & Ham Curers Pty Ltd (the Limited Partner) has pleaded not guilty to the following offences of which the Category 2 offences are pleaded in the alternative to the Category 1 offences:

1. that as a person with a health and safety duty under s 19(1) of the Act, it without reasonable excuse engaged in conduct that exposed the workers to a risk of death or serious injury and it engaged in the conduct with gross negligence or was reckless to the risk to an individual of death or serious injury, contrary to s 31 of the Act (Category 1); and

2. that as a person with a health and safety duty under s 20 of the Act, it without reasonable excuse engaged in conduct that exposed the workers to a risk of death or serious injury and it engaged in the conduct with gross negligence or was reckless to the risk to an individual of death or serious injury, contrary to s 31 of the Act (Category 1); and

3. that as a person with a health and safety duty under s 19(1) of the Act that it that it failed to comply with that duty and thereby exposed the workers to a risk of death or serious injury, contrary to s 32 of the Act (Category 2) and

4. that as a person with a health and safety duty under s 20 of the Act that it failed to comply with that duty and thereby exposed the workers to a risk of death or serious injury, contrary to s 32 of the Act (Category 2)

4. PHBC LH Pty Ltd (the Labour Hire Company) has pleaded not guilty to a Category 1 offence that as a person with a health and safety duty under s 19(1) of the Act, it without reasonable excuse engaged in conduct that exposed the workers to a risk of death or serious injury and it engaged in the conduct with gross negligence or was reckless to the risk to an individual of death or serious injury, contrary to s 31 of the Act.

5. The Labour Hire Company has pleaded guilty to a Category 2 offence that was pleaded in the alternative to the Category 1 offence, that as a person with a health and safety duty under s 19(1) of the Act that it failed to comply with that duty and thereby exposed the workers to a risk of death or serious injury, contrary to s 32 of the Act.

6. Michael Zammit has pleaded not guilty to a Category 2 offence that as a worker with a health and safety duty under s 28(b) of the Act that he failed to comply with that duty and thereby exposed the workers to a risk of death or serious injury contrary to s 32 of the Act.

Statement of the case

7. On 22 May 2021 the workers were instructed to clean solar panels installed on the roof of the Pendle Hill Meat Market at 142 Bungaree Road, Pendle Hill (the Shop). At about 1.30pm, Mr Shanmugalingam fell through a frosted perspex skylight installed on the roof of the Shop about 8m to the concrete floor and suffered serious injuries.

8. The Shop was part of a business operated by the Pendle Ham & Bacon Curers Partnership (the Partnership). The Partnership was registered as a limited partnership under the Partnership Act 1892 (the Partnership Act) and the subject of a Deed of Limited Partnership dated 16 April 2015 (the Partnership Deed), constituted by Pendle Ham & Bacon Pty Ltd as the General Partner and Pendle Ham & Bacon Curers Pty Ltd as the Limited Partner. The Partnership traded under the name Pendle Ham & Bacon Curers.

9. At all material times, Charles Zammit and Jason Zammit were the directors of the General Partner, the Limited Partner and the Labour Hire Company. Michael Zammit is the son of Charles and the brother of Jason. [1]

   1. I will refer to the Zammit family members by their first name to avoid confusion, and I intend no disrespect or informality by doing so.

10. The workers, Michael and Jayanthan Sithiravel (Jayanthan) were employed by the Labour Hire Company and assigned work for the General Partner. Michael was employed as a manager.

11. In or about early May 2021, Michael instructed Jayanthan to undertake the task of cleaning the solar panels.

12. It was conceded by the General Partner and the Labour Hire Company that each of them, in breach of the s 19(1) duty owed to the workers, failed to take the following reasonably practicable steps:

1. prohibiting and/or preventing one or more of the workers from working on the roof of the commercial building given that there were no permanent protective covers over the skylights and no permanent edge protection at the roof edge;

2. providing permanent protective covers over the skylights (or requiring them to be provided by the General Partner in the case of the Labour Hire Company);

3. providing permanent protective edge protection to the roof (or requiring it to be provided by the General Partner in the case of the Labour Hire Company).

13. It was further conceded by the General Partner that in breach of its s 20 duty that it failed to take the reasonably practicable steps set out in [12](a)-(c).

The Elements of the Offences

14. The prosecution bears the onus of proving the elements of the offence beyond reasonable doubt. There is no onus on the defendants. It is not for the defendants to prove their innocence, but for the prosecution to prove their guilt and to prove it beyond reasonable doubt.

The category 1 offences

15. Section 31 of the Act provides:

(1)   A person commits a Category 1 offence if--

(a)   the person has a health and safety duty, and

(b)   the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness, and

(c)   the person--

(i)   engages in the conduct with gross negligence, or

(ii)   is reckless as to the risk to an individual of death or serious injury or illness.

(2)   The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse.

16. The elements of the s 31 offence are:

• Element A – The defendant has a health and safety duty imposed by the Act.

• Element B – The defendant without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness.

• Element C – The defendant engages in the conduct with gross negligence or is reckless to the risk to an individual of death or serious injury or illness.

17. The prosecution bears the onus of proving that the conduct was engaged in without reasonable excuse: s 31(2) of the Act.

The category 2 offences

18. Section 32 of the Act provides:

A person commits a Category 2 offence if:

(a)   the person has a health and safety duty, and

(b)   the person fails to comply with that duty, and

(c)   the failure exposes an individual to a risk of death or serious injury or illness.

19. The elements of the s 32 offence are:

• Element 1  - The defendant had a health and safety duty imposed by the Act.

• Element 2  - The defendant failed to comply with its health and safety duty.

• Element 3  - The failure exposed an individual to a risk of death or serious injury.

20. The elements of the s 32 offence for a breach of the s 28(b) duty are:

• Element (a) -  The defendant was a worker who engaged in conduct “while at work”.

• Element (b) -  The defendant failed to take reasonable care that his or her acts or omissions did not adversely affect the health and safety of other persons; and

• Element (c) -  The defendant’s breach of duty exposed an individual to a risk of death or serious injury.

21. In order for a defendant to have a health and safety duty under s 19(1) of the Act, the defendant must:

1. be a person conducting a business or undertaking (PCBU); and

2. engage workers, or influence or direct the activities of the workers.

22. In order for a defendant to have a health and safety duty under s 20 of the Act, the defendant must:

1. be a person conducting a business or undertaking (PCBU); and

2. the business or undertaking must have the management or control of a workplace.

23. In order for a worker to have a health and safety duty under s 28(b) of the Act, the defendant must:

1. be a worker, and

2. engage in conduct “while at work”. [2]

   2. “Engage in conduct” means doing an act or omitting to do an act: s 4 of the Act.

24. The General Partner admitted that it was a PCBU and that it owed a health and safety duty pursuant to s 19(1) of the Act because it engaged and/or directed the workers and pursuant to s 20 of the Act because it had the management or control of the workplace. For the s 31 offences, the General Partner did not put in issue that it engaged in conduct without reasonable excuse that exposed the workers to a risk of death or serious injury. The General Partner has pleaded guilty to the s 32 offences.

25. The Limited Partner has pleaded not guilty to all offences brought against it on the basis that it did not owe a health and safety duty to the workers, because it:

1. was not a PCBU, and/or

2. did not engage the workers, influence or direct their activities and/or

3. did not have control or management of the workplace.

26. The Labour Hire Company admitted that it was a PCBU and that it owed a health and safety duty pursuant to s 19(1) of the Act because it engaged the workers. For the s 31 offence, the Labour Hire Company did not put in issue that it engaged in conduct without reasonable excuse that exposed the workers to a risk of death or serious injury. The Labour Hire Company has pleaded guilty to the s 32 offence.

27. Michael has pleaded not guilty to the s 32 offence on the basis that:

1. the evidence does not establish to the criminal standard that he was “at work” at the time when he instructed Jayanthan to undertake the task of cleaning the solar panels, and thereby he did not owe a health and safety duty pursuant to s 28(b) of the Act, and/or

2. he did not breach his s28(b) duty by failing to take the steps pleaded in [7] of the Summons, because those steps were not within the scope of the duty imposed on him as a worker; and/or

3. his breach of duty was not a substantial or significant cause of the workers being exposed to a risk of death or serious injury.

Issues

28. The issues in the case are:

1. Can the corporate defendants rely on the revised answers they have provided to SafeWork NSW to questions they were required to answer in s 155 Notices?

2. In relation to the Category 1 offences, does the evidence establish the fault element of the offence that the corporate defendants were either:

1. grossly negligent, or

2. reckless to the risk to an individual of death or serious injury?

3. Did the Limited Partner owe a health and safety duty? The sub-issues are:

1. was the Limited Partner conducting a business or undertaking?

2. did the Limited Partner engage the workers, or influence or direct their activities and thereby owe a health and safety duty under s 19(1) of the Act?

3. did the Limited Partner have the control of the workplace and thereby owe a health and safety duty under s 20 of the Act?

4. If the answer to (3) is yes, was it reasonably practicable for the Limited Partner to take the steps set out in [11] of the relevant Summons?

5. Noting the admissions of the General Partner and the Labour Hire Company that they breached their work health and safety duty for the Category 2 offences, by failing to take the reasonably practicable steps set out in [12](a)-(c) and [13] above, did the General Partner and the Labour Hire Company breach the health and safety duty owed by them, by also failing to take the steps particularised in the relevant Summonses?

6. Did Michael Zammit owe a health and safety duty pursuant to s 28(b) of the Act? In particular, was Michael Zammit “at work” when he gave the relevant instructions to Jayanthan?

7. Did Michael Zammit breach his s 28(b) duty by failing to take the steps set out in [7] of the relevant Summons?

8. Did Michael Zammit’s breach of duty expose the workers to a risk of death or serious injury?

Evidence

29. The evidence consisted of the tender of a large volume of documents and oral evidence from the following witnesses:

1. Sedhurajan Velusamy, a general hand/cleaner;

2. Thavathasan Ponnuthurai, a general hand/cleaner;

3. Belinda Zvirblis, the financial manager of the Group;

4. Jayanthan Sithiravel, a maintenance worker and weekend supervisor in the Pet Food Business;

5. Jamie Brown, a business consultant to the Group;

6. Jason Zammit;

7. Charles Zammit;

8. Inspector Joshua Kent; and

9. Alexander Flyak, the independent accountant for the Group.

Credit

30. Before turning to finding facts based on the evidence, it is necessary to make some findings about the credit of the witnesses called to give evidence.

Prosecution witnesses

31. Ms Zvirblis had been employed by the Limited Partner and then the Labour Hire Company for about 26 years. In her role as financial manager of the Group Ms Zvirblis was responsible for managing the payroll and accounts payable. Ms Zvirblis gave evidence that she was employed by the Labour Hire Company and assigned to work for the Partnership. For reasons that I will come to, I do not accept as a matter of law that the workers [3] were assigned to work for the Partnership, and I have found that they were assigned to work for the General Partner. However, I accept that Ms Zvirblis’ answer was truthful because it coincided with what she understood to be the taxation arrangements of the Partnership that it was to be treated as a corporation. She also acted as a personal assistant to Charles and Jason when required. To the extent that she assisted in providing responses to s 155 Notices she did so as an assistant to Charles and not as a responsible person of any of the corporate defendants. It was put to Ms Zvirblis in cross-examination, as a positive proposition and she accepted, that between 2006 and April 2015 that the Limited Partner operated the business. I reject that evidence because it does not coincide with the contemporaneous documents reviewed by Mr Flyak, and I prefer that evidence. Ms Zvirblis appeared to me to understand her role and the accounting practices that she employed to financially administer the business of the Partnership, but I am not satisfied that she had any in depth understanding of the limited partnership structure or what it was intended to achieve. I accept that Ms Zvirblis was doing her best to tell the truth and that I accept the balance of her evidence.

    3. Including Ms Zvirblis, Michael and Jayanthan.

32. Mr Brown was not cross-examined and no issue was taken with his evidence. I accept Mr Brown’s evidence.

33. Mr Velusamy had a limited ability to speak English and cannot read English. He received all instructions whilst working at the Factory and/or the Shop from Jayanthan in the Tamil language. He gave his evidence with the assistance of a Tamil interpreter. Mr Velusamy’s evidence was limited by his understanding of English and the translation of some concepts. However, I am satisfied that Mr Velusamy was trying to do his best to tell the truth and that his evidence should be accepted.

34. Mr Ponnuthurai also had a limited understanding of English, cannot read English and gave his evidence with the assistance of a Tamil interpreter. He was usually supervised by Jayanthan and given instructions in the Tamil language. Mr Ponnuthurai’s evidence was easier to follow than the evidence of Mr Velusamy. I am satisfied that Mr Ponnuthurai was trying to do his best to tell the truth and that his evidence should be accepted.

35. Jayanthan’s understanding of English was better than Mr Velusamy and Mr Ponnuthurai, but he still required the assistance of the Tamil interpreter during some parts of his evidence. He regularly took instructions from Michael in English and as I understood his evidence, he had a sufficient understanding of English to do so. Jayanthan presented as a good witness who was eager to assist whoever was asking him questions. However, on the topic of the instructions that Michael had given him about staying away from the skylights, I formed the impression that he overstated what was said and/or overemphasised how it had been said. I am satisfied that he did so because he thought those instructions were critical to the outcome of the case and that influenced him to supply emphasis. Apart from that, Jayanthan was a thoughtful and helpful witness and I am satisfied that his evidence should be accepted.

36. Jason appeared to have very little comprehension of the limited partnership structure of the Group. I note that Jason was predominantly responsible for the operation of the Farm and based in Mittagong, although he attended the Group’s premises at Pendle Hill for some part of most days. His evidence was of limited value to the issues in the case. I accept that he was doing his best to convey his understanding of the limited partnership structure, but I am not sure that his understanding was particularly accurate. I prefer the evidence of Mr Flyak and the contemporaneous business records on these issues.

37. Charles is presently 86 years of age. He struggled to give evidence and it was apparent that his mental acuity and memory is declining. During the COVID-19 pandemic, Charles did not go to the Shop because he was concerned for his health. Charles too, appeared to have very little understanding of the limited partnership structure of the Group or what it was intended to achieve. Notwithstanding that Charles did not recall his involvement in providing the original answers to the s 155 Notices, I am satisfied that he was responsible with Paul Sant, the Group’s solicitor, for preparing them and that he had the authority on behalf of the corporate defendants and other companies in the Group to do so. I find that he had discussions with Jayanthan and others, that he did not now recall, to determine what had occurred in the incident. Charles was the subject of a successful s 38 application and was cross-examined on a few limited matters. I have taken that into account in assessing his evidence and his credit. For reasons that I will come to, I am not satisfied that some of the answers given by Charles were reliable and I prefer the evidence of Mr Flyak and the contemporaneous business records on the limited partnership structure of the Group and the operation of the Partnership. Charles made a number of appropriate concessions against the interests of the corporate defendants and I accept that he was trying to do his best to tell the truth. Notwithstanding that, Charles’ evidence was of limited value because he could no longer recall the details of his enquiries that led to the provision of the original responses to the s 155 Notices or the relevant events in general.

38. Inspector Kent was asked by the prosecutor to give expert evidence. No issue was taken with Inspector Kent’s credit. For reasons that I will come to when addressing issue 5, some of Inspector Kent’s conclusions were on the application of objective standards, rather than matters on which he was applying his specialised knowledge training or experience. In some instances, I have preferred my own application on those matters. Otherwise, I accept Inspector Kent’s evidence, which is most relevant to Issue 5 and I will return to it later.

Defence witness

39. Mr Flyak has been providing accounting services, taxation, financial and structural advice to the Group since 2012 as an employee of the Group’s former accountant and as a director of his own firm since 2014. He was called to give evidence in the defence case. Mr Flyak was instrumental in the adoption of the limited partnership and trust structure by the Group in 2015. Mr Flyak’s understanding of the relevant facts has been obtained from the primary business records of the Group that are reflected in the financial statements and taxation returns he has prepared for and on behalf of the relevant corporations and partnerships. In the course of preparing to give evidence in these proceedings, Mr Flyak came to believe that he may not have accurately described the activities of the Limited Partner in its financial statements and tax returns and he gave evidence that he has taken steps in the 2023 documents to correct the position. He was challenged on that evidence. As a practical and prophylactic measure, I granted him a certificate under s 128 Evidence Act 1995 (the Evidence Act) relating to that evidence, which was not opposed by the prosecutor. I have taken that into account in assessing his evidence and his credit. For reasons that I will come to, I reject Mr Flyak’s opinion evidence as to the correct descriptions of the activities of the Limited Partner in its financial statements and tax returns. However, I am satisfied that the contemporaneous business records overwhelmingly demonstrate that in the period between 2015 and 22 May 2021 (the relevant period), the Limited Partner:

1. did not have a bank account;

2. did not enter into any agreement with any other person on behalf of the Partnership;

3. did not employ any individual to undertake work on its behalf;

4. did not pay any expenses on behalf of the Partnership;

5. did not receive any income on behalf of the Partnership;

6. did not engage any workers to undertake work on its own behalf or on behalf of the Partnership;

7. did not receive any distribution of profit from the Partnership;

8. conducted itself in accordance with the Partnership Deed; and

9. did not take part in the management, conduct or operation of the Partnership business.

40. My rejection of this part of Mr Flyak’s evidence was not in any way based on his veracity. Mr Flyak was a careful and considered witness. In my view, he was trying to do his best to give truthful evidence and I accept the balance of his evidence, without hesitation. He presented as a witness, who consistent with his pending admission as a legal practitioner, had the utmost respect for the Court and its processes and a thorough understanding of the need to tell the whole truth and nothing but the truth.

Issue 1   Can the corporate defendants rely on the revised answers they have provided to SafeWork NSW to questions they were required to answer in s 155 Notices?

Background

41. It is necessary to deal with Issue 1 as a preliminary matter, as it informs the evidence to be considered in making my factual findings.

42. In the course of the investigation following the incident, the SafeWork inspectors issued a number of Notices pursuant to s 155 of the Act (the s 155 Notices) requiring the corporate defendants, other companies within the Group and a number of individuals to provide information in the knowledge of the recipient.

43. In response to the s 155 Notices, the corporate defendants, the companies and the individuals provided responses to SafeWork NSW (the original answers).

44. I am satisfied on the evidence that Charles was primarily responsible for providing the original answers and that he did so after speaking with Jayanthan and others about what had occurred in the incident. He sourced the documents provided with the original answers from Mr Flyak, with the assistance of Ms Zvirblis. Where the answers were typed and sent by email, I find that Ms Zvirblis provided the information in accordance with Charles’ instructions and not as a responsible person on behalf of the relevant company. Charles provided the original answers as a responsible person on behalf of the companies with the assistance from Mr Sant. It was common ground that the original answers prepared by Charles were admissions of the relevant companies.

45. In the course of preparing the case the defendants came to retain solicitors and counsel who regularly appear in WHS prosecutions. As a result of receiving advice from those legal representatives, the relevant persons provided further and/or revised information in response to the s 155 Notices, on the basis that the earlier answers were not a complete or accurate response to the initial requests in the s 155 Notices (the revised answers).

46. The prosecutor refused the defendants’ requests to tender the revised answers, in addition to the original answers. The defendants sought to tender the revised answers and the prosecutor objected to the tender. I admitted the revised answers provisionally pursuant to s 57 of the Evidence Act.

47. In so far as I understand the prosecutor’s argument, it is that the original answers are admissions against interests made by the corporate defendants, and as such are more likely to be reliable than the self-serving statements made in the revised answers. Although it was not expressly articulated, I infer that the prosecutor’s objection was based on the exception in s 85(2) of the Evidence Act.

48. The corporate defendants contend that the original answers were provided by the relevant persons who did not have a proper understanding of the structure of the Group or the concept of a limited partnership and that the revised answers are consistent with the contemporaneous documents establishing the Partnership and the contemporaneous business records that demonstrate that the General Partner has undertaken the management, conduct and operation of the Partnership business and that the Limited Partner has not. The corporate defendants say that the revised answers were compiled and served because in their view there is a continuing duty of disclosure to answer requests for information made under s 155 of the Act.

Discussion

Relevant provisions of the Evidence Act

49. The starting point is:

1. the original answers given by the corporate defendants were admissible as admissions against the corporate defendants, pursuant to s 85(1) of the Evidence Act;

2. the original answers given by Charles were admissible as admissions of the corporate defendants because as a director, Charles had the authority of the corporate defendants to make statements on their behalf pursuant to s 87(1)(a) of the Evidence Act;

3. the original answers given by Charles on behalf of the General Partner were admissible against the Limited Partner because the General Partner had the authority to bind the Limited Partner by agreement in the Partnership Deed;

4. the original answers given by persons who were not defendants such as Dubavo Pty Ltd, an owner of the Shop, were not admissible as admissions and were hearsay, however their tender was not objected to by the corporate defendants; and

5. the original answers of the corporate defendants and Charles were not tendered against Michael.

50. The revised answers by the corporate defendants and Charles were admissible against the corporate defendants if they were admissions made to an investigating official, unless “the circumstances in which the admissions were made were such as to make it unlikely that the truth of the admission was adversely affected”: s 85(2) of the Evidence Act.

A summary of the revised answers

51. The revised answers provided by Charles and the Labour Hire Company were prefaced by the following “Introduction”:

We refer to questions issued under a s 155 Notice of the Work Health and Safety Act 2011, notice 7-405574, dated 5 October 2021 and in particular the signed response which was sent on 27 October 2021.

It has recently come to our attention that some of the answers contained in the response are inaccurate or could be read in a way which leads the reader to an inaccurate answer. As part of our continuing obligation under the notice we supply the following answers to correct those issues.

Although PHBC LH Pty Ltd is a legally separate company it only exists as a financial and administrative vehicle for employing and hiring out employees to other entities within the Pendle Ham and Bacon Group. It centralises and simplifies payroll management, benefits administration, and compliance-related responsibilities for each company in the Pendle Ham and Bacon Group, rather than these requirements and tasks being undertaken within each other entity. PHBC LH Pty Ltd does not participate in any activity or engage with any entity outside the Pendle Ham and Bacon Group, as do traditional labour hire companies.

PHBC LH Pty Ltd does not operate from its own premises or employee any dedicated personnel to manage the employment services for the other entities within the Pendle Ham and Bacon Group. The employees who perform these tasks also do work for other entities within the Pendle Ham and Bacon Group.

The directors of PHBC LH Pty Ltd are the same directors of entities within the Pendle Ham and Bacon Group.

Accordingly:

1.   the knowledge held by those entities is also knowledge held by PHBC LH Pty Ltd; and

2.   the conduct of the other entities in relation to work health and safety matters involving the employees provided by PHBC LH Pty Ltd is viewed as being, in substance, also the conduct of PHBC LH Pty Ltd This is not a transfer or contracting out of the duties on PHBC LH Pty Ltd, rather an acknowledgement and reflection of the non-operational role that PHBC LH Pty Ltd performs and the common directorship and management of PHBC LH Pty Ltd and the entities within the Pendle Ham and Bacon Group.

The Pendle Ham and Bacon Group comprises several entities. Relevantly:

1. Pendle Ham and Bacon Pty Ltd ABN 31 604 955 786 (Pendle Ham and Bacon Pty Ltd) is the General Partner of the Pendle Ham and Bacon Curers Partnership (Partnership), which is a limited partnership established pursuant to the Partnership Act 1892 (NSW) (Partnership Act) and a deed of partnership dated 16 April 2015 (Deed of Partnership).

2.   The Partnership trades as Pendle Ham and Bacon Curers (Business).

3.   Pendle Ham and Bacon Curers Pty Ltd ABN 57 001 221 825 (Pendle Ham and Bacon Curers Pty Ltd) is the Limited Partner of the Partnership.

The Partnership Act and the Deed of Partnership do not permit the Limited Partner, Pendle Ham and Bacon Curers Pty Ltd, to participate in the management, conduct and operation of the Business. Particularly, Pendle Ham and Bacon Curers Pty Ltd does not:

1.   conduct any activity to make a profit; or

2.   conduct any activity for non-profit purposes or for commercial purposes; or

3.   operate an enterprise; or

4.   have any control of the Business or the Business premises; or

5.   engage anyone to work for it or anyone else; or

6.   influence or direct how any work is performed for the Business; or

7.   operate a bank account.

The Partnership Act and the Deed of Partnership require the General Partner, Pendle Ham and Bacon Pty Ltd, to wholly manage, conduct and operate the Business.

For taxation purposes the Australian Taxation Office treats and taxes the Partnership as a corporation, even though it is not a legal entity, and treats Pendle Ham and Bacon Pty Ltd, and Pendle Ham and Bacon Curers Pty Ltd, as shareholders of the Partnership.

In the Schedule of Questions to the Notice it is stated that all references to “Pendle Ham and Bacon” are a reference to PHBC LH Pty Ltd. The revised answers are provided adopting this reference.

52. The revised answers by Charles:

1. described the incident, the system of work and the remedial steps taken after the incident in terms that were consistent with the evidence;

2. did not seek to withdraw any admission made by the General Partner or the Labour Hire Company;

3. clarified the involvement of the Labour Hire Company within the Group in accordance with an orthodox legal understanding of the responsibilities of a labour hire company.

53. The revised answers by the Limited Partner:

1. replaced any reference to “Pendle Ham & Bacon Curers Partnership (A Limited Partnership)” in the original answers with “Pendle Ham & Bacon Pty Ltd as General Partner for and on behalf of the Partnership”; and

2. provided additional information of payments by the General Partner and other companies within the Group to the Labour Hire Company.

54. The revised answers by the General Partner:

1. replaced any reference to “Pendle Ham & Bacon Curers Partnership (A Limited Partnership)” in the original answers with “Pendle Ham & Bacon Pty Ltd as General Partner for and on behalf of the Partnership”;

2. included an explanation that contrary to the original answer that the Partnership paid the Labour Hire Company for the supply of labour was taken from the Partnership financial statements, on closer examination it was the General Partner that paid the Labour Hire Company for the supply of labour for and on behalf of the Partnership.

55. The revised answers by the Labour Hire Company restated the explanation provided in [53](b) above.

56. There were no revised answers submitted for Timaz Investments Pty Ltd and PHBCT Pty Ltd. The revised answers for Dubavo Pty Ltd changed references to the Partnership to references to the General Partner for an on behalf of the Partnership.

Were the revised answers admissions?

57. “Admission” means a previous representation made by a person who becomes a defendant in a criminal proceeding that is adverse to the person’s interest in the outcome of the proceeding. [4] A previous representation is defined to include an express or implied representation or a representation inferred from conduct.

    4. Section 3 of the Evidence Act and the Dictionary.

58. In Kuhl v Zurich Financial Services Australia Pty Ltd (2011) 243 CLR 361 at [64] Heydon, Crennan and Bell JJ observed:

Depending on the circumstances, when a party lies, or destroys or conceals evidence, or attempts to destroy or conceal evidence, or suborns witnesses, or calls testimony known to be false, or fails to comply with court orders for the production of evidence (like subpoenas or orders to answer interrogatories), or misleads persons in authority about who the party is, or flees, the conduct can be variously described as an implied admission or circumstantial evidence permitting an adverse inference. The position must be the same where there is a failure of a party-witness to comply with the duty of a witness to tell the whole truth.

59. In general, the courts have taken a broad view of the term “admission” to include facts inferred from words or conduct: R v Horton (1998) 104 A Crim R 306 at 317 (Wood CJ at CL). Because the definition refers to an admission being adverse to the person’s interest in the outcome of the proceedings, rather than at the time it is made, an exculpatory representation may be an admission if it is relied on as an implied admission.

60. It is beyond question that the revised answers are admissions of the General Partner and the Labour Hire Company and that those admissions are consistent with the basis on which the General Partner and the Labour Hire Company have entered pleas of guilty to the Category 2 offences pleaded against them.

61. I am also satisfied that the revised answers contain admissions by the General Partner that bind the Limited Partner. In particular, the admission by the General Partner that it operated the Partnership business on behalf of the Partnership is an admission of the Limited Partner that consistent with cl 11.2 of the Partnership Deed that the Limited Partner ceded all of the management, conduct and operation of the Partnership business to the General Partner.

62. The revised answers are most relevant to the determination of Issue 3. When dealing with Issue 3 I have concluded that s 5(3) of the Act refers to partners conducting the one business and as a consequence both partners conducted the Partnership business. The result of that analysis is that the Limited Partner is a PCBU.

63. I have also concluded when dealing with Issue 3 that the Limited Partner caused the workers to be engaged by agreeing to allow the General Partner to operate the Partnership business on behalf of the Partnership and was a partner of the business that had management or control of the work place.

64. Those findings in combination establishes an element of one of the offences pleaded against the Limited Partner and is thereby adverse to the Limited Partner in the outcome of the proceedings.

65. For these reasons, I am satisfied that the revised answers of Charles and the corporate defendants constitute admissions.

Were the circumstances in which the admissions were made were such as to make it unlikely that the truth of the admission was adversely affected?

66. The prosecutor contended that the revised answers were self-serving and were a reconstruction of matters put forward to fit in with the case theory pursued by the corporate defendants. I do not agree.

67. The revised answers were entirely consistent with the contemporaneous documents establishing the limited partnership and the large volume of contemporaneous business records kept by the Group relating to the operation of the Shop and the Factory by the Partnership. This was not a case where a corporate defendant was trying to mould a case inconsistent with contemporaneous documents, but the exact opposite.

68. It was apparent from the evidence of Jason, Charles and Ms Zvirblis that they did not understand the structure of the Group or the limited partnership concept.

69. Ms Zvirblis understood that as a matter of accounting practice for the Group that the General Partner was the company that received the revenue of the Partnership for the Shop and expended funds for it through the Partnership Bank Account, [5] and she recorded the income and expenses accordingly. Ms Zvirblis also gave evidence that from her knowledge of the payroll that all of the workers in the Group were employed by the Labour Hire Company as was demonstrated by Michael’s payslip and the payslips of the workers. The General Partner made payments to the Labour Hire Company for the hire of the workers assigned to work for it from the Partnership Bank Account and this was also confirmed in the financial statements and company tax returns prepared for the Partnership.

    5. As defined in [86] below.

70. Mr Flyak gave evidence that he was not the architect of the Group structure and that he relied on the advice of a specialist law firm to establish the limited partnerships of the Group. He was involved in setting up the structure which involved the incorporation of the General Partner, the execution of the Partnership Deed, the opening of a bank account in the name of the General Partner and the registration of the limited partnership pursuant to s 50A of the Partnership Act. Once established, Mr Flyak gave evidence that the limited partnership structure for the Shop has been implemented through the General Partner undertaking the conduct of the Partnership business and that this is reflected in the contemporaneous business records he has been given for the purpose of preparing financial statements and company tax returns for the limited partnership since its inception. Mr Flyak also gave evidence that all of the workers used by the General Partner are employed by the Labour Hire Company.

71. I accept that the revised answers were proffered by the defendants because they had received legal advice that the original answers were not consistent with the correct legal position and could be misleading. I am satisfied that by proffering the revised answers, the Group intended to seek to correct the record on the basis that s 155 imposed a continuing duty of disclosure. For present purposes, I do not need to determine if s 155 of the Act imposes a continuing duty of disclosure.

72. I am satisfied that the circumstances in which the admissions were made did not adversely affect their reliability.

Conclusion on Issue 1

73. In all of the circumstances, I am satisfied that the admissions made in the revised answers of Charles and the corporate defendants were reliable and should be admitted.

74. However, where the original answers contain admissions to matters that were non-responsive to the original question in the relevant s 155 notice or pertains to a topic other than the limited partnership structure or the operation of the Group, the prosecutor is entitled to rely on those admissions if they are relevant to a fact in issue and the provision of the revised answers should not be taken to have withdrawn any admission made in the original answers.

Facts

75. The parties tendered an Agreed Statement of Facts which I have incorporated into my findings of fact. I will not repeat matters I have already referred to and will use the terms I have already defined. The following matters represent my findings of fact unless stated otherwise.

Background

The Pendle Ham and Bacon Group

76. The Zammit family controls a number of companies and trusts that operate a vertically integrated business in the meat and smallgoods industry, which I will refer to as the Pendle Ham & Bacon Group (the Group). The Group raises livestock which it processes at its abattoir, smallgoods factory and pet food factory, into meat, smallgoods and pet food that are sold on a wholesale basis and on a retail basis to consumers from the Shop.

77. The Group consists of four separate limited partnerships that each operate a separate business that can be described as follows: [6]

    6. In describing the activities of the Shop business in this paragraph, it is necessary to revert from using the previously defined terms of the Partnership, the General Partner and the Limited Partner – but I will return to using those defined terms thereafter.

1. the Boen Boe Partnership is a limited partnership that operates a livestock business referred to in the Group as the Farm. The Boen Boe Partnership is operated by Boen Boe Pty Ltd as the general partner with a 1% interest. Timaz Investments Pty Ltd and Charles are the limited partners and each hold a 49.5% interest. The Farm operates from rural properties in the Southern Highlands;

2. the PHBC Partnership is a limited partnership that operates an abattoir business, referred to in the Group as the Abattoir. The PHBC Partnership is operated by PHBCP Pty Ltd as the general partner with a 1% interest. Charles is the limited partner and holds a 99% interest. Charles is also the trustee of the PCHP Trust;

3. the Pendle Ham & Bacon Curers Partnership is a limited partnership that operates a business producing and selling meat and smallgoods products, referred to in the Group as the Shop. The Pendle Ham & Bacon Curers Partnership is operated by Pendle Ham & Bacon Pty Ltd as the general partner with a 1% interest. Pendle Ham & Bacon Curers Pty Ltd is the limited partner and holds a 99% interest. Pendle Ham & Bacon Curers Pty Ltd is the trustee of the PHBC Absolutely Entitled Trust. The Shop business includes the retail premises at 142 Bungaree Road, Pendle Hill and the smallgoods factory (the Factory) that operates from a building next door to the Shop at 138 Bungaree Road, Pendle Hill;

4. the PHBC Super Partnership is a limited partnership that operates a pet food business which is referred to in the Group as the Pet Food Business. PHBCS Pty Limited is the general partner with a 1% interest. PHBC Pty Ltd is the limited partner and holds a 99% interest. PHBC Pty Ltd is the trustee of the Zammit Family Trust. The Pet Food Business trades under the name “Yummi Pet Food getting your pet’s lick of approval” (Yummi Pet Food) and operates from premises adjacent to the Shop and the Factory at 115/121 Ballandella Road, Pendle Hill.

78. There are also a number of other companies and trusts in the Group that own the premises from which the Group businesses operate. For example, the Shop building is owned by Dubavo Pty Ltd and Timaz Investments Pty Ltd. Rent is paid for the Shop building by the General Partner to PHBCS Pty Ltd as general partner of the PHBC Super Partnership and expenses relating to the property are paid by PHBCS Pty Ltd. Ms Zvirblis gave evidence that the rates for the Shop and the electricity accounts were paid by the General Partner. I infer that there was some internal accounting process to reflect what was demonstrated by the records seen by Mr Flyak. Not much turns on this because the General Partner admitted that it had control or management of the Shop.

The establishment of the present Group structure in 2015

79. The present structure of the Group was adopted in about 2015.

80. The original business of manufacturing and selling smallgoods was commenced by Charles. The Limited Partner was incorporated on 5 April 1974 and took over operation of the business from that time.

81. Ms Zvirblis gave evidence that up and until 2006 the business was operated by the Limited Partner and it held a bank account in its own name that was used to receive revenue generated and pay the costs of the business. From the commencement of Ms Zvirbis’ employment in about 1998, the business used a computer-based accounting system, known as Micronet. The system was originally set up by Micronet with the name of the Limited Partner (Pendle Ham & Bacon Curers Pty Ltd) displayed by the system.

82. Mr Flyak gave evidence that the contemporaneous documents demonstrate that the Limited Partner ceased operating the business on 18 April 2007 and that it did not trade again until about 2010. From 18 April 2007 to 23 June 2010 the business was operated by PHBCT Pty Ltd as trustee for the PHBC Absolutely Entitled Trust. On 23 June 2010 the Limited Partner replaced PHBCT Pty Ltd as the trustee for the PHBC Absolutely Entitled Trust and continued to operate the business until the restructure of the Group and the establishment of the Partnership in 2015.

83. The Partnership Deed was executed by the General Partner and the Limited Partner and dated 16 April 2015. The Partnership was registered as a limited partnership as required by s 50A of the Partnership Act on 22 June 2015 and was deemed to be formed on that day.

84. The limited partnership structure was adopted by the Group in 2015 with the assistance of a specialist law firm, Cleary Hoare Solicitors (CHS), who provided explanatory documents and advice to the Group’s accountant. Mr Flyak relied on the advice of CHS in taking the necessary steps to establish the limited partnerships in the Group, including the Partnership. Mr Flyak gave evidence that the limited partnership structure was adopted by each division of the Group because of a change to taxation treatment of corporate trustees operating a business, where the Australian Taxation Office (ATO) required all profit generated by a corporate trustee after the payment of company tax to be distributed to beneficiaries of the trust. This created the potential for additional tax liability for the beneficiary as well as practical problems for businesses wanting to retain profits within the business. A limited partnership was not required to distribute the profits generated by the business to the partners, thereby allowing the profits to be retained in the business so long as the limited partnership paid tax on those profits at the company tax rate.

85. I pause to note that a further advantage of the limited partnership structure was the limited liability of the Limited Partner. Section 60 of the Partnership Act provides that the liability of a limited partner to contribute to the liabilities of the partnership is limited to the amount of the limited partner’s liability recorded in the Register, which in the present case was $99.00. The limitation of liability is dependent on the limited partner not being personally liable and conducting itself in accordance with s 67(1) of the Partnership Act, that it “must not take part in the management of the business”: see for example, Johnson v Mackinnon (No 2) [2022] NSWCA 22 at [41].

86. Ms Zvirblis gave evidence that when the limited partnership structure was adopted by the Group in 2015 that a new CBA bank account was opened in the name of “Pendle Ham & Bacon Pty Ltd as General Partner for the Partnership of Pendle Ham & Bacon Curers Partnership a Limited Partnership” and thereafter used for all of the business of the Partnership (the Partnership Bank Account).

87. On 17 June 2015 Mr Flyak was copied into an email from Muneeb Rehman of the Commonwealth Bank of Australia (CBA) to Ms Zvirblis confirming the opening of the Partnership Bank Account in the required name.

Relevant clauses of the Partnership Deed

88. Clause 3 provided as follows under the heading Name and Place of Business:

The business of the Partnership shall be conducted under the Business Names and/or such other names nominated by the General Partner at any time.

89. Clause 4 provided as follows under the heading Purposes of the Partners:

4.1   The purposes of the business of the Partners are, through the Partnership, to:

4.1.1   Engage in the business of manufacture and sale of meat products.

4.1.2   Acquire, own, expand, develop, maintain, operate, and hold for trade or investment any property.

4.1.3   Engage in any general business activities related to these purposes.

4.2   The additional purpose of the General Partner is to manage the Partnership and the business of the Partnership.

4.3   The additional purpose of the Limited Partners is to limit their liabilities as Partners as set out in Clause 8.   

90. Clause 6 recorded that the Initial Capital Contribution of the Limited Partner was $99.00.

91. Clause 8 provided as follows under the heading Limitation of Liability:

8.1   Notwithstanding anything to the contrary in this Deed, the liability of each of the Limited Partners for the debts of the Partnership shall in no event exceed his Initial Capital Contribution.   

8.1.1   As specified in Item 3 of the Schedule for Limited Partners.

8.1.2   As determined under Clause 6.3 for Additional Limited Partners.

8.2   Clause 7.3 shall not apply to any determinations under Clause 8.1

8.3   The Limited Partners are under no obligation to, and will not be required to, make additional contributions to the capital of the Partnership.

92. Clause 11 relevantly provided as follows under the heading Management and Commissions:

11.1   Nothing in this clause shall affect the operation of Clause 8.

11.2   The General Partner shall devote such time to the Partnership as shall be reasonably necessary to conduct the Partnership business in an efficient manner. The General Partners shall have sole and complete charge of the management, conduct and operation of the Partnership business in all respects and in all matters and shall have the power on behalf of the Partnership to bind the Partners and the Partnership as the unlimited agent of the Partners and the Partnership.   

Failing to conduct an adequate risk assessment [58]

58. [7](e) of the Summons.

549. For the reasons given at [476]–[485] above, I am satisfied that Michael failed to conduct an adequate risk assessment of the task of cleaning the solar panels.

550. However, I am not satisfied that the s 28(b) duty required him to undertake a risk assessment. The legal obligation imposed by Part 3.1 of the Regulations to conduct a systematic risk assessment applies only to PCBUs. The guidance material also indicates that the obligation to undertake a risk assessment rests with a PCBU.

551. I am not satisfied that it was a reasonable response to the risk to require Michael to undertake a formal risk assessment when he was not, as a worker, under a legal obligation to do so.

552. I am not satisfied beyond reasonable doubt that Michael breached the s 28(b) duty by failing to take the steps pleaded in [7](e) of the Summons.

Implement a Safe Work Method Statement (SWMS) [59]

59. [7](f) of the Summons.

553. A SWMS is a means of complying with the systematic risk assessment process required by Part 3.1 of the Regulations. The obligation to devise and implement a SWMS is only imposed on a PCBU and in limited circumstances, such as for high risk construction work.

554. It is unlikely that an effective SWMS could be prepared without there first being in existence an adequate risk assessment, which for the reasons given, Michael was not obliged to undertake.

555. The implementation of a SWMS would not have added much to the oral warnings and instructions given by Michael on the risk posed by the fall hazards and how to avoid them.

556. I am not satisfied that the s 28(b) duty required Michael to devise and implement a SWMS.

557. I am not satisfied that it was a reasonable response to the risk to require Michael to devise and implement a SWMS when he was not, as a worker, under a legal obligation to do so.

558. I am not satisfied beyond reasonable doubt that Michael breached the s 28(b) duty by failing to take the steps pleaded in [7](f) of the Summons.

Exclusion zones marked by temporary barricades around the skylights [60]

60. [7](g) of the Summons.

559. I have had regard to the matters set out in [463] and [469] above without repeating them.

560. I am not satisfied on the evidence that Michael knew or ought to have known that an exclusion zone with a securely fixed barrier capable of preventing entry into it was an available measure to mitigate the risk of a fall through a skylight. This was a measure referred to in guidance material, which as a worker, Michael was not required to consult.

561. I am satisfied that as a manager providing instruction to workers to undertake a task with known risks to their safety, that he was under an obligation to warn the workers of the risks.

562. The use of a marked exclusion zone around the skylights would have had the effect of identifying the fall hazard and was a control measure that would have provided a visual prompt to reinforce the instruction to stay away from the skylights. The use of a marked exclusion zone would have increased the efficacy of the instructions.

563. The identification of a hazard through the use of an exclusion zone is a familiar sight in our daily lives, for example when work is being done on a footpath and an exclusion zone is established around a fall hazard such as an excavation. The evidence was that Jayanthan used plastic bollards and barrier tape in the Shop to establish temporary exclusion zones to keep members of the public out of where cleaning was being undertaken.

564. I am satisfied that Michael ought to have known that setting up a temporary exclusion zone using plastic bollards and barrier tape was an available, inexpensive and convenient step that could have been taken to increase the efficacy of the oral instructions.

565. I am not satisfied that Michael knew or ought to have known the recommended requirements for temporary exclusion zones on roofs provided for in available guidance material.

566. The direction to set up an exclusion zone around the skylights was a simple measure that could have been achieved with the equipment available to the General Partner. I am satisfied that Michael had the authority of the General Partner to direct Jayanthan to set up an exclusion zone using the available plastic bollards and barrier tape in the stores of the General Partner.

567. I am satisfied beyond reasonable doubt that the prosecutor has established that Michael breached the s 28(b) duty by failing to direct Jayanthan to set up a marked exclusion zone around the skylights using the available plastic bollards and barrier tape.

Pictorial warning signs [61]

61. [7](h) of the Summons.

568. I have had regard to the matters set out in [470]-[475] without repeating them.

569. I am satisfied that the purchase and installation of pictorial warning signs was within Michael’s financial delegation.

570. I am satisfied that as a manager providing instruction to workers to undertake a task with known risks to their safety that he was under an obligation to warn the workers of the risks in so far as he perceived them.

571. I am not satisfied that the purchase and installation of pictorial warning signs would have added much to the warnings given in the instructions. I accept Inspector Kent’s evidence that warning signs are an unreliable measure.

572. I am not satisfied beyond reasonable doubt that Michael breached the s 28(b) duty by failing to take the steps pleaded in [7](h) of the Summons.

Failing to provide adequate information, instruction or training for working at height and competent supervision [62]

62. [7](i) of the Summons.

573. Inspector Kent summarised the content of the Falls Code, providing that workers should be provided training on the proper use of PPE, the hazards and risks associated with work performed at height and how to use fall prevention devices including harnesses and lanyards.

574. Inspector Kent did not suggest that the use of PPE was appropriate in this case and accordingly it was not a reasonable step for Michael to take.

575. Inspector Kent stated that harnesses and lanyards were not suitable for use on the roof and accordingly it could not have been reasonable for Michael to arrange training on their use, which would have had to have been provided by a qualified external training provider.

576. Michael warned the workers in the instructions given that there was a risk of falling off the edge of the roof and through the perspex skylight cover. The risk of falling off the edge of the roof was obvious to a large extent. He gave instructions to work between the rows of solar panels and to not approach within 2m of the edge of the roof and to stay away from the skylights. I am satisfied that those warnings contained in the instructions were sufficient to point out the hazards posed by the edge of the roof and the perspex skylight covers and that they both involved a risk of a serious fall.

577. I am not satisfied that Michael knew or ought to have known about the residual risks or the content of the Falls Code.

578. The prosecutor did not specify what further training should have been provided to the workers apart from the implementation of a SWMS, which for the reasons given, I am satisfied that Michael was not obliged to provide.

579. Jayanthan did provide supervision to ensure that the workers were complying with Michael’s instructions. The prosecutor did not specify what additional supervision was reasonable for Michael to provide.

580. I am not satisfied beyond reasonable doubt that Michael breached the s 28(b) duty by failing to take the steps pleaded in [7](i) of the Summons.

Conclusion on Issue 7

581. I am satisfied beyond reasonable doubt that the prosecutor has established that Michael breached his s 28(b) duty by failing to instruct Jayanthan to set up a temporary exclusion zone around the skylights using the plastic bollards and barrier tape that were in the stores of the General Partner.

Issue 8   Did Michael Zammit’s breach of duty expose the workers to a risk of death or serious injury?

582. The principles relevant to causation are set out at [277]-[280] and I will not repeat them.

583. I have found that Michael breached his s 28(b) duty by failing to direct Jayanthan to set up a temporary exclusion zone using bollards and plastic tape around the southern skylights. It is necessary to determine if that breach exposed the workers to a risk of death or serious injury, by reference to what actually occurred in the incident.

584. For the reasons given, it is very difficult to determine how Mr Shanmugalingam fell through the skylight. I cannot determine if he came into contact with the perspex cover of the skylight cover accidentally, such as by tripping and falling or inadvertence, or deliberately.

585. A temporary exclusion zone delineated by bollards and plastic tape would not have eliminated the risk, because the temporary barriers could not withstand horizontal forces. Mr Shanmugalingam could have tripped, slipped or inadvertently walked through temporary barricades and fallen through the perspex cover of the skylight.

586. In order to be effective, relevant guidance material suggests that temporary exclusion zones on roofs should be set up no less than 3m away from the hazard, presumably to allow space for a worker to trip and fall without falling into the hazard. [63] An exclusion zone of that size would not have been practical for the southern skylights, because the gap between them and the nearest solar panels was 2600mm. If a temporary exclusion zone had been used it would have been much closer to the hazard, and therefore may not have provided much, if any protection, from an accidental fall or inadvertent passage.

     63. SafeWork NSW, Guide to safe solar panel installation, February 2021.

587. For the reasons given, I am not satisfied that Michael knew or ought to have known of the required dimensions for an effective temporary exclusion zone.

588. The overwhelming cause of Mr Shanmugalingam’s exposure to the risk of death or serious injury as a result of falling through the skylight were the failures of the General Partner to provide and the Labour Hire Company to require permanent covers that would have prevented the possibility of a fall through one of the skylights. The provision of permanent covers would have eliminated the risk, irrespective of how Mr Shanmugalingam came into contact with the cover of the skylight.

589. By comparison, the absence of a temporary exclusion zone around the skylights may have minimised the risk to some extent, but equally it may not have. In circumstances where I cannot make any reliable findings on the mechanics of Mr Shanmugalingam’s fall, I cannot be satisfied beyond reasonable doubt that Michael’s breach of duty was a significant or substantial cause of Mr Shanmugalingam being exposed to the risk of death or serious injury.

Conclusion on Issue 8

590. Taking into account all of the evidence, I am not satisfied beyond reasonable doubt that the prosecutor has established Element (c) of the Category 2 offence pleaded against Michael.

Conclusion

591. My conclusions are as follows:

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.

592. 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.

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Endnotes

Amendments

03 April 2025 - Changes made to numbered paragraphs where "bullets" were meant to be used.

Decision last updated: 03 April 2025