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SafeWork NSW v Rockfield Contracting Pty Ltd (No. 2)

SafeWork NSW v Rockfield Contracting Pty Ltd (No. 2)

Case [2021] NSWDC 250 16 June 2021

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Criminal Law

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District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Rockfield Contracting Pty Ltd (No. 2) [2021] NSWDC 250
Hearing dates: 9 June 2021
Date of orders: 16 June 2021
Decision date: 16 June 2021
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Rockfield Contracting Pty Ltd is convicted.
(2)   Order Rockfield Contracting Pty Ltd to pay a fine of $250,000.
(3) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor.
(4)   Order Rockfield Contracting Pty Ltd to pay the prosecutor’s costs.
(5) Order pursuant to s 238 of the Work Health and Safety Act 2011 (NSW):
(a)   Within six months of the date of these Orders, the defendant is to undertake and fund (to a limit of $15,000) the development and production of a de-identified educative animated video (“the project”) by a suitable external provider (“the provider”) that documents, illustrates and highlights:
(i)   the incident in which Paul Walsh was exposed to a risk of death or serious injury on 14 April 2016 (“the material date”);
(ii)   the risks to which Paul Walsh was exposed on the material date;
(iii)   the content, nature and operation of a suitable safe system of work that would have reduced the risk to which Paul Walsh was exposed on the material date as far as is reasonably practicable;
(b)   The management of the project and the provider will be undertaken by SafeWork NSW.
(c)   The defendant is to make periodic payments, when approved, within the terms specified in the agreement between SafeWork NSW and the provider.
(d)   The copyright and all exhibiting and distribution rights in relation to the project, including the educative animated video, are to be held jointly by SafeWork NSW and Rockfield Contracting Pty Ltd.
(e)   The video is to bear the logo of SafeWork NSW and the Waratah emblem of the State of New South Wales.
(f)   The defendant is to notify the prosecutor, and the Registrar of the NSW District Court at the Downing Centre Sydney of any change of address for service.
(g)   Liberty to restore the matter before the court if the parties wish to vary this order or the defendant does not comply with this order.

Catchwords:
CRIMINAL LAW — prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury
SENTENCE — objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay –appropriate penalty – Work Health and Safety project order
COSTS — prosecution costs
OTHER — drill string and drill head containing stored energy broke free from earth and struck a fatal blow to worker – no guidance material identifying the risk available – whether or not the likelihood of risk occurring was low – whether level of culpability is lower when risk is not generally known to industry

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A,…

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.

Continue reading SafeWork NSW v Rockfield Contracting Pty Ltd (No. 2)

Details

AGLC: SafeWork NSW v Rockfield Contracting Pty Ltd (No. 2) [2021] NSWDC 250
Case: [2021] NSWDC 250
Decision Date: 16 June 2021

CaseChat Overview and Summary

In SafeWork NSW v Rockfield Contracting Pty Ltd (No. 2), the court dealt with a prosecution brought by SafeWork NSW against Rockfield Contracting Pty Ltd in the NSW District Court. The matter arose from an incident where a drill string and drill head containing stored energy broke free from the earth and struck a fatal blow to a worker, Paul Walsh, on 14 April 2016. The prosecution sought to hold Rockfield Contracting Pty Ltd accountable for breaches of work health and safety regulations under the Work Health and Safety Act 2011 (NSW).

The court was tasked with determining the objective seriousness of the offence, the appropriate penalty for Rockfield Contracting Pty Ltd, and the imposition of a Work Health and Safety project order. The central legal issues involved assessing the level of culpability given the unavailability of guidance material identifying the risk, the likelihood of the risk occurring, and the appropriate penalty that would serve general and specific deterrence. The plea of guilty by Rockfield Contracting Pty Ltd was also a factor in the court’s consideration of the penalty.

The court found the offence to be of significant objective seriousness, considering the fatal outcome and the breach of duty of care under the Act. The mitigating factors included the plea of guilty and the absence of a previous history of similar breaches. However, the court noted the severity of the consequences and the need for deterrence. The court ordered a fine of $250,000, with 50% to be paid to the prosecutor, and mandated the payment of the prosecutor’s costs. Additionally, the court imposed a Work Health and Safety project order, requiring Rockfield Contracting Pty Ltd to develop an educative animated video highlighting the incident and appropriate safety measures. The video was to be produced by a suitable external provider, with oversight by SafeWork NSW, and the costs limited to $15,000. The court also granted liberty to restore the matter for any future variations or non-compliance.

Orders

Orders of the court

(1) Rockfield Contracting Pty Ltd is convicted.

(2) Order Rockfield Contracting Pty Ltd to pay a fine of $250,000.

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

(4) Order Rockfield Contracting Pty Ltd to pay the prosecutor’s costs.

(5) Order pursuant to s 238 of the Work Health and Safety Act 2011 (NSW):

(a) Within six months of the date of these Orders, the defendant is to undertake and fund (to a limit of $15,000) the development and production of a de-identified educative animated video (“the project”) by a suitable external provider (“the provider”) that documents, illustrates and highlights:

(i) the incident in which Paul Walsh was exposed to a risk of death or serious injury on 14 April 2016 (“the material date”);

(ii) the risks to which Paul Walsh was exposed on the material date;

(iii) the content, nature and operation of a suitable safe system of work that would have reduced the risk to which Paul Walsh was exposed on the material date as far as is reasonably practicable;

(b) The management of the project and the provider will be undertaken by SafeWork NSW.

(c) The defendant is to make periodic payments, when approved, within the terms specified in the agreement between SafeWork NSW and the provider.

(d) The copyright and all exhibiting and distribution rights in relation to the project, including the educative animated video, are to be held jointly by SafeWork NSW and Rockfield Contracting Pty Ltd.

(e) The video is to bear the logo of SafeWork NSW and the Waratah emblem of the State of New South Wales.

(f) The defendant is to notify the prosecutor, and the Registrar of the NSW District Court at the Downing Centre Sydney of any change of address for service.

(g) Liberty to restore the matter before the court if the parties wish to vary this order or the defendant does not comply with this order.

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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Citations

SafeWork NSW v Rockfield Contracting Pty Ltd (No. 2) [2021] NSWDC 250

Cases Citing This Decision

No citing cases yet.

Cases Cited

SafeWork NSW v Rockfield Contracting Pty Ltd [2021] NSWDC 35
Citation 1 (Para 2)

…ty and thereby exposed Mr Walsh to a risk of death or serious injury contrary to s 32 of the Act – Safework NSW v Rockfield Contracting Pty Ltd [2021] NSWDC 35 (“the primary judgment”).…
Attorney General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319
Citation 2 (Para 58)

…this matter I will take into account the recent decision of the Court of Criminal Appeal in Attorney-General v Jamestrong Packaging Australia Pty Ltd [2020] NSWCCA 319. The case involved a prosecution under the Act and a death on a construction site. The objective seriousness of the offence was said to be in the hig…
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Citation 3 (Para 52)

…In Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 at [79] the Court of Criminal Appeal said:…
Bulga Underground Operations v Nash [2017] NSWCCA 96
Citation 4 (Para 38)

…h regard to the Act in the matter of Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96. His Honour Justice Basten at [34], under the heading “Assessment of Risk” said:…
Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
Citation 5 (Para 43)

…safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 at [180].…
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
Citation 6 (Para 51)

…exercise its discretion to limit the amount of the fine. The offender’s capacity to pay is relevant but not decisive: Mahdi Jahandideh v The Queen [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.…
The Queen v Putra Hendra [2014] ACTSC 102
Citation 7 (Para 34)

…In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:…
R v McNaughton [2012] NZHC 815
Citation 8 (Para 32)

…e circumstances of the crime. The gravity of the offence is assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].…
Muldrock v The Queen [2011] HCA 39
Citation 9 (Para 34)

…In Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 at [27] the High Court said:…
BW v R [2011] NSWCCA 176
Citation 10 (Para 33)

…ive seriousness of the offence committed, and set the limits within which a sentence proportional to the criminality of the offender will lie: BW v R [2011] NSWCCA 176 at [70].…
R v Wilkinson (No. 5) [2009] NSWSC 432
Citation 11 (Para 35)

…ng circumstances as are directly related to that crime and are properly regarded as circumstances of aggravation or mitigation: R v Wilkinson (No. 5) [2009] NSWSC 432 at [61].…
R v McNaughton [2006] NSWCCA 242
Citation 12 (Para 32)

…used to describe the circumstances of the crime. The gravity of the offence is assessed by reference to its objective seriousness: R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 at [15].…
Baumer v R [1988] HCA 67
Citation 13 (Para 33)

…The task requires the court to consider where in the range of conduct covered by the offence the conduct of the offender falls: Baumer v R [1988] HCA 67; (1988) 166 CLR 51 at 57. This assessment will generally indicate the appropriate range of sentences available which will reflect the objective seriousness of t…
Veen v The Queen (No 2) [1988] HCA 14
Citation 14 (Para 32)

…hat a sentence should neither exceed nor be less than the gravity of the crime having regard to the objective circumstances: Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 at 472, 485-6, 490-1 and 496. At common law, the term “objective circumstances” is used to describe the circumstances of the crim…

Legislation Cited

Work Health and Safety Act 2011 (ACT) 19, 238, 3, 32
5 mentions (from Para 2)
Crimes (Sentencing Procedure) Act 1999 (NSW) 21A, 3A
3 mentions (from Para 31)
Fines Act 1996 (NSW) 122, 6
3 mentions (from Para 51)

Medium Neutral Citation:	SafeWork NSW v Rockfield Contracting Pty Ltd (No. 2) [2021] NSWDC 250
Hearing dates:	9 June 2021
Date of orders:	16 June 2021
Decision date:	16 June 2021
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Rockfield Contracting Pty Ltd is convicted. (2) Order Rockfield Contracting Pty Ltd to pay a fine of $250,000. (3) Order pursuant to Section 122(2) of the Fines Act 1996 that 50% of the fine is to be paid to the prosecutor. (4) Order Rockfield Contracting Pty Ltd to pay the prosecutor’s costs. (5) Order pursuant to s 238 of the Work Health and Safety Act 2011 (NSW): (a) Within six months of the date of these Orders, the defendant is to undertake and fund (to a limit of $15,000) the development and production of a de-identified educative animated video (“the project”) by a suitable external provider (“the provider”) that documents, illustrates and highlights: (i) the incident in which Paul Walsh was exposed to a risk of death or serious injury on 14 April 2016 (“the material date”); (ii) the risks to which Paul Walsh was exposed on the material date; (iii) the content, nature and operation of a suitable safe system of work that would have reduced the risk to which Paul Walsh was exposed on the material date as far as is reasonably practicable; (b) The management of the project and the provider will be undertaken by SafeWork NSW. (c) The defendant is to make periodic payments, when approved, within the terms specified in the agreement between SafeWork NSW and the provider. (d) The copyright and all exhibiting and distribution rights in relation to the project, including the educative animated video, are to be held jointly by SafeWork NSW and Rockfield Contracting Pty Ltd. (e) The video is to bear the logo of SafeWork NSW and the Waratah emblem of the State of New South Wales. (f) The defendant is to notify the prosecutor, and the Registrar of the NSW District Court at the Downing Centre Sydney of any change of address for service. (g) Liberty to restore the matter before the court if the parties wish to vary this order or the defendant does not comply with this order.
Catchwords:	CRIMINAL LAW — prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE — objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay –appropriate penalty – Work Health and Safety project order COSTS — prosecution costs OTHER — drill string and drill head containing stored energy broke free from earth and struck a fatal blow to worker – no guidance material identifying the risk available – whether or not the likelihood of risk occurring was low – whether level of culpability is lower when risk is not generally known to industry
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A,…