SafeWork NSW v Poletti Corporation Pty Ltd - [2019] NSWDC 791

District Court

New South Wales

Amendment notes

Medium Neutral Citation: SafeWork NSW v Poletti Corporation Pty Ltd [2019] NSWDC 791
Hearing dates: 4 December 2019
Date of orders: 18 December 2019
Decision date: 18 December 2019
Jurisdiction: Criminal
Before: Scotting DCJ
Decision:
1 The offender is convicted.
2 I impose a fine of $300,000.
3 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
4 The offender is to pay the prosecution’s costs of the proceedings.
5 The prosecutor is to pay the offender’s costs thrown away by the late service of the prosecutor’s expert report, the vacation of the hearing of 12 March 2019 and the preparation of the defendant’s expert report.

Catchwords:
CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of PCBU to other persons – risk of death or serious injury – injury of worker
SENTENCING – objective seriousness – aggravating factors – mitigating factors – parity
COSTS – vacation of hearing date – preparation of expert report
Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Criminal Procedure Act 1986
Work Health and Safety Act 2011

Cases Cited:
Green v The Queen (2011) 244 CLR 462
R v Youkhana [2004] NSWCCA 412
SafeWork NSW v Poletti Corporation Pty Ltd [2019] NSWDC 491

Category: Sentence
Parties: Department of Customer Service (Prosecutor)
Poletti Corporation Pty Limited (Defendant)
Representation:
Counsel:
C Magee (Prosecutor)
B Barry (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
DWF (Australia) (Defendant)

File Number(s): 2018/565732018/57479
Publication restriction: None

Judgment

Introduction

Poletti Corporation Pty Ltd (the offender) appears for sentence after it was found guilty after trial of an offence contrary to section 32 Work Health and Safety Act 2011 (the Act).
The Court’s reasons for the finding of guilt are set out in its decision SafeWork NSW v Poletti Corporation Pty Ltd [2019] NSWDC 491 (the verdict judgment).
The maximum penalty for the offence is a fine of $1.5 million.

Facts

The following relevant matters are extracted from the verdict judgment.
Karimbla Construction Services Pty Ltd (Karimbla) was the principal contractor for the construction of two residential apartment towers known as the Altitude Development (the site) situated at 330 Church Street, Parramatta. Karimbla is part of the Meriton Group of Companies (Meriton).
The West Tower was constructed using a jumpform screen system (the system), supplied, installed and operated by the offender. The offender was also contracted by Karimbla to undertake the formwork for the West Tower.
The contract between the offender and Karimbla provided that the offender was responsible for the design of the system and required to provide design drawings. The offender was obliged to comply with all relevant Australian Standards and the Building Code of Australia, in supplying and maintaining the system. The offender was also obliged to observe all work, health and safety legislation, acknowledging that it had control over all aspects of its work and safety issues at the site.
The Formwork Scope of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWDC 791
Decision Date: 18 December 2019

CaseChat Overview and Summary

SafeWork NSW, as the regulatory body for workplace safety in New South Wales, prosecuted Poletti Corporation Pty Ltd for alleged breaches of work health and safety laws. The dispute centred around the alleged failure of the respondent to meet its duty under the relevant legislation, leading to an injury sustained by one of its workers. The case was heard in the Local Court of New South Wales. The primary legal issues before the court were whether the respondent, as the person conducting a business or undertaking, had failed to provide a safe working environment, and whether it had adequately discharged its duty to ensure the health and safety of other persons. Specifically, the court had to determine if the respondent had breached its duty by not preventing a risk of death or serious injury to the worker, and if the respondent's actions constituted a significant contravention of the work health and safety laws.

The court considered the objective seriousness of the offence, the potential for aggravating and mitigating factors, and the need for parity with similar cases. In determining the fine, the court assessed the severity of the breach, the potential harm caused, and the respondent's efforts to rectify the situation post-incident. It also took into account the financial capacity of the respondent and the need to deter future breaches. The court found that the respondent's failure to provide a safe workplace was a significant breach, warranting a substantial penalty. It noted the absence of prior convictions and the respondent's cooperation post-incident as mitigating factors but concluded that these did not sufficiently offset the gravity of the breach.

The court imposed a fine of $300,000 on Poletti Corporation Pty Ltd and ordered that half of this amount be paid to SafeWork NSW. It also mandated that the respondent cover the prosecution's costs for the proceedings. Conversely, SafeWork NSW was required to reimburse the respondent for costs incurred due to the late service of an expert report by the prosecution, the rescheduling of the hearing date, and the preparation of the respondent's own expert report. This decision underscored the importance of workplace safety and the regulatory body's role in enforcing compliance with health and safety laws.

Orders

Orders of the court

1 The offender is convicted.

2 I impose a fine of $300,000.

3 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.

4 The offender is to pay the prosecution’s costs of the proceedings.

5 The prosecutor is to pay the offender’s costs thrown away by the late service of the prosecutor’s expert report, the vacation of the hearing of 12 March 2019 and the preparation of the defendant’s expert report.

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 Poletti Corporation Pty Ltd [2019] NSWDC 791
Hearing dates:	4 December 2019
Date of orders:	18 December 2019
Decision date:	18 December 2019
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	1 The offender is convicted. 2 I impose a fine of $300,000. 3 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. 4 The offender is to pay the prosecution’s costs of the proceedings. 5 The prosecutor is to pay the offender’s costs thrown away by the late service of the prosecutor’s expert report, the vacation of the hearing of 12 March 2019 and the preparation of the defendant’s expert report.
Catchwords:	CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of PCBU to other persons – risk of death or serious injury – injury of worker SENTENCING – objective seriousness – aggravating factors – mitigating factors – parity COSTS – vacation of hearing date – preparation of expert report
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Work Health and Safety Act 2011
Cases Cited:	Green v The Queen (2011) 244 CLR 462 R v Youkhana [2004] NSWCCA 412 SafeWork NSW v Poletti Corporation Pty Ltd [2019] NSWDC 491
Category:	Sentence
Parties:	Department of Customer Service (Prosecutor) Poletti Corporation Pty Limited (Defendant)
Representation:	Counsel: C Magee (Prosecutor) B Barry (Defendant) Solicitors: Department of Customer Service (Prosecutor) DWF (Australia) (Defendant)
File Number(s):	2018/565732018/57479
Publication restriction:	None