SafeWork NSW v Pendle Ham & Bacon Pty Ltd (No 2)

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District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: SafeWork NSW v Pendle Ham & Bacon Pty Ltd (No 2) [2025] NSWDC 399
Hearing dates: 19 September 2025
Date of orders: 03 October 2025
Decision date: 03 October 2025
Jurisdiction:Criminal
Before: Scotting DCJ
Decision:

(1) The questions 1-7 proposed by the prosecutor are not questions of law for the purposes of s 5AE Criminal Appeal Act 1912 and I do not have the power to state them to the Court of Criminal Appeal for determination.

Catchwords:

CRIMINAL PROCEDURE – whether questions can be submitted to the Court of Criminal Appeal – when questions submitted after delivery of reasons that the prosecutor had failed to establish elements of the relevant offences – whether surrogate right of appeal – whether questions proposed by the prosecutor to be submitted were questions of law within the meaning of s 5AE Criminal Appeal Act 1912

Legislation Cited:

Criminal Appeal Act 1912

Evidence Act 1995

Partnership Act 1892

Work Health and Safety Act 2011

Cases Cited:

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338

Director General Department of Trade and Investment Regional Infrastructure and Services v Glennies Creek Coal Management Pty Ltd (2013) 239 IR 343

Environmental Protection Authority of NSW v Goulburn Wool Scour Pty Ltd (2004) 137 LGERA 289

Environmental Protection Authority v Grafil Pty Ltd [2019] NSWCCA 174

Ex parte McGavin; Re Berne (1946) 46 SR (NSW) 58

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

Jago v District Court of New South Wales (1989) 168 CLR 23

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

Lam v Beesley (1992) 7 WAR 88 at 95

Mifsud v Campbell (1991) 21 NSWLR 725

Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 609

Moore v The King [2024] HCA 30

Orr v Cobar Management Pty Ltd [2020] NSWCCA 220

Orr v Hunter QuarriesPty Ltd [2022] NSWCCA 39

SafeWork NSW v BOC Ltd [2020] NSWCA 306

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

SafeWork NSW v Pendle Ham & Bacon Pty Ltd [2025] NSWDC 63

SafeWork NSW v Scharfe [2021] NSWDC 260

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

Talay v R [2010] NSWCCA 308

Todorovic v Moussa (2001) 53 NSWLR 463

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

Category:Principal judgment
Parties: SafeWork NSW (Prosecutor)
Pendle Ham & Bacon Pty Ltd (Defendant)
Pendle Ham & Bacon Curers Pty Ltd (Defendant)
PHBC LH Pty Ltd (Defendant)
Michael Zammit (Defendant)
Representation:

Counsel:
J Stratton SC with B Docking
M Shume

Solicitors:
Legal, Department of Customer Service (Prosecutor)
Hall & Wilcox (Defendants)
File Number(s): Pendle Ham & Bacon Pty Ltd - 2023/160834 and 2023/160857
Pendle Ham & Bacon Curers Pty Ltd - 2023/160812 and 2023/160871
PHBC LH Pty Ltd - 2023/160882
Michael Zammit - 2023/160822
Publication restriction: None

Judgment

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Details
Case
[2025] NSWDC 399
Decision Date

CaseChat Overview and Summary

SafeWork NSW brought an action against Pendle Ham & Bacon Pty Ltd in relation to a workplace health and safety matter, which ultimately reached the Supreme Court of New South Wales. The dispute centred on whether the company had breached its duty of care under the Occupational Health and Safety Act 2000. The case involved questions regarding the interpretation and application of certain statutory provisions, and the sufficiency of the evidence to support a conviction.

The court was tasked with determining whether questions submitted to it by the prosecutor, after the reasons for judgment had been delivered, could be submitted to the Court of Criminal Appeal. The questions in question related to the prosecutor's contention that certain elements of the relevant offences had not been established. Further, the court had to decide whether the prosecutor had a surrogate right of appeal, and if the proposed questions were indeed questions of law as defined under section 5AE of the Criminal Appeal Act 1912.

In delivering its judgment, the court held that the questions proposed by the prosecutor did not qualify as questions of law under section 5AE of the Criminal Appeal Act 1912. Consequently, the court did not have the authority to submit these questions to the Court of Criminal Appeal for determination. The court emphasised the importance of adhering to the statutory framework governing the submission of questions to the appellate court and noted that the prosecutor's proposed questions did not meet the criteria for being considered questions of law. As a result, the court declined to submit the questions to the Court of Criminal Appeal.

The court's final order was that the questions 1-7 proposed by the prosecutor were not questions of law for the purposes of section 5AE of the Criminal Appeal Act 1912, and that the court did not have the power to state them to the Court of Criminal Appeal for determination.

Orders

Orders of the court

(1) The questions 1-7 proposed by the prosecutor are not questions of law for the purposes of s 5AE Criminal Appeal Act 1912 and I do not have the power to state them to the Court of Criminal Appeal for determination.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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