SafeWork NSW v Pendle Ham & Bacon Curers Pty Ltd - [2024] NSWDC 395

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Pendle Ham & Bacon Curers Pty Ltd [2024] NSWDC 395
Hearing dates: 25, 25, 27 and 28 March 2024
Date of orders: 2 September 2024
Decision date: 02 September 2024
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
(1) The transcript of the recorded interview between Inspectors Ball and Barry of SafeWork NSW and Michael Zammit conducted on 22 September 2021 is excluded.

Catchwords:
EVIDENCE —Admissibility of evidence
CRIMINAL LAW – work health and safety - objection to tender of record of interview

Legislation Cited:
Evidence Act 1995
Partnership Act 1892
Work Health and Safety Act 2011

Cases Cited:
Galvin v R [2006] NSWCCA 66
GPI Leisure Corp Pty Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531

Category: Procedural rulings
Parties: SafeWork NSW (Prosecutor)
Pendle Ham & Bacon Curers Pty Ltd (Defendant)
Pendle Ham and Bacon Pty Ltd (Defendant)
PHBC LH Pty Ltd (Defendant)
Michael Zammit (Defendant)
Representation:
Counsel:
B Docking (Prosecutor)
I Taylor SC / M Shume (Defendants)
Solicitors:
Legal, Department of Customer Service (Prosecutor)
Hall & Wilcox (Defendants)

File Number(s):
2023/160812 and 2023/160871
Pendle Ham & Bacon Curers Pty Ltd

2023/160834 and 2023/160857
Pendle Ham and Bacon Pty Ltd

2023/160882
PHBC LH Pty Ltd
2023/160822
Michael Zammit
Publication restriction: None

RULING

Introduction

Michael Zammit, Pendle Bacon & Ham Pty Ltd (the General Partner), Pendle Bacon & Ham Curers Pty Ltd (the Limited Partner) and PHBC LH Pty Ltd (the Labour Hire Company) are defendants in a joint trial in progress before the Court. [1]
1. I will refer to the Zammit family members by their first name to avoid confusion, and I intend no disrespect by doing so.
The charges brought under the Work Health and Safety Act 2011 (the Act) relate to a worker falling through a skylight on the roof of the Pendle Hill Meat Market (the Meat Market) on 22 May 2021.
The Meat Market was a business operated by a partnership trading under the name “Pendle Ham & Bacon Curers Partnership” (the Partnership). The Partnership was registered as a limited partnership under the Partnership Act 1892 and created by a Deed of Limited Partnership dated 16 April 2015, constituted by Pendle Ham & Bacon Pty Ltd as the General Partner and Pendle Ham & Bacon Curers Pty Ltd as the Limited Partner.
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 is the son of Charles and the brother of Jason. He was employed by the Labour Hire Company as a Manager and placed to work with the Partnership.
On or about 22 May 2021, Michael instructed Jayanthan Sithiravel (Jayanthan) to instruct other workers to clean solar panels installed on the roof of the Meat Market. He had previously instructed Jayanthan about the safety precautions to be taken by the workers who…

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: [2024] NSWDC 395
Decision Date: 02 September 2024

CaseChat Overview and Summary

SafeWork NSW brought proceedings against Pendle Ham & Bacon Curers Pty Ltd in the NSW District Court. The dispute involved allegations of breaches of work health and safety laws. The court was required to consider the admissibility of evidence, specifically a recorded interview with an employee of the respondent company. The primary issue was whether the transcript of the interview, which had been conducted without the presence of legal representation for the interviewee, should be admitted as evidence. SafeWork NSW argued that the transcript was relevant and should be considered, while the respondent contended that its admissibility was barred due to procedural irregularities.

The court examined the relevant legislation and case law regarding the admissibility of evidence obtained in the absence of legal representation. It considered whether the interview was conducted in a manner that could be considered fair and whether the rights of the interviewee were adequately protected. The court found that the interview had not been conducted in a manner that could be deemed fair, as the interviewee had not been advised of their right to legal representation, which was a significant procedural irregularity. Consequently, the court determined that the transcript of the interview was inadmissible as evidence.

Given this decision, the court excluded the transcript of the recorded interview from being used in the proceedings. This ruling underscores the importance of procedural fairness in the collection of evidence, particularly in work health and safety cases where the rights of individuals must be protected. The court's decision ensures that evidence obtained through unfair or irregular processes cannot be used to the detriment of a party in legal proceedings. The ruling also highlights the necessity for regulatory bodies to adhere strictly to procedural guidelines when conducting interviews as part of their investigations.

Orders

Orders of the court

(1) The transcript of the recorded interview between Inspectors Ball and Barry of SafeWork NSW and Michael Zammit conducted on 22 September 2021 is excluded.

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 Pendle Ham & Bacon Curers Pty Ltd [2024] NSWDC 395
Hearing dates:	25, 25, 27 and 28 March 2024
Date of orders:	2 September 2024
Decision date:	02 September 2024
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	(1) The transcript of the recorded interview between Inspectors Ball and Barry of SafeWork NSW and Michael Zammit conducted on 22 September 2021 is excluded.
Catchwords:	EVIDENCE —Admissibility of evidence CRIMINAL LAW – work health and safety - objection to tender of record of interview
Legislation Cited:	Evidence Act 1995 Partnership Act 1892 Work Health and Safety Act 2011
Cases Cited:	Galvin v R [2006] NSWCCA 66 GPI Leisure Corp Pty Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
Category:	Procedural rulings
Parties:	SafeWork NSW (Prosecutor) Pendle Ham & Bacon Curers Pty Ltd (Defendant) Pendle Ham and Bacon Pty Ltd (Defendant) PHBC LH Pty Ltd (Defendant) Michael Zammit (Defendant)
Representation:	Counsel: B Docking (Prosecutor) I Taylor SC / M Shume (Defendants) Solicitors: Legal, Department of Customer Service (Prosecutor) Hall & Wilcox (Defendants)
File Number(s):	2023/160812 and 2023/160871 Pendle Ham & Bacon Curers Pty Ltd 2023/160834 and 2023/160857 Pendle Ham and Bacon Pty Ltd 2023/160882 PHBC LH Pty Ltd 2023/160822 Michael Zammit
Publication restriction:	None