SafeWork NSW v Topdeck Scaffolding Pty Limited - [2024] NSWDC 215

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Topdeck Scaffolding Pty Limited [2024] NSWDC 215
Hearing dates: 7 June 2024
Date of orders: 14 June 2024
Decision date: 14 June 2024
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Topdeck Scaffolding Pty Limited is convicted.
(2)   The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty.
(3)   Order Topdeck Scaffolding Pty Limited to pay a fine of $150,000.
(4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor.
(5)   Order Topdeck Scaffolding Pty Limited to pay the prosecutor’s costs.

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
COSTS – prosecution costs
OTHER – scaffolding – scaffolding inadequately secured – containment sheeting and signage – wind – scaffolding collapse – strikes adjacent building – damage to neighbouring apartment

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
Fines Act 1996 (NSW), ss 6, 122
Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 155
Work Health and Safety Regulation 2017 (NSW) cl 291

Cases Cited:
Baumer v R [1988] HCA 67; (1988) 166 CLR 51
Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
BW v R [2011] NSWCCA 176
Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
R v Wilkinson (No. 5) [2009] NSWSC 432
Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465

Texts Cited:
Australian/New Zealand Standard 1576:1:2019 Scaffolding, Part 1: General Requirements, 4 March 2019
Australian Standard 1576:6:2020 Scaffolding Part 6: Metal Tube and Coupler Scaffolding – Deemed to Conform to AS/NZS 1576:1, 6 March 2020
Australian Standard 4576:2020 Guidelines for Scaffolding, 2020
Safe Work Australia General Guide for Scaffold and Scaffolding Work, July 2014
SafeWork NSW Erecting, Altering and Dismantling Scaffolding – Part One: Prefabricated Steel Modular Scaffolding, 31 March 2021
SafeWork NSW Safety Alert Scaffolding Collapse, 6 July 2020

Category: Sentence
Parties: SafeWork NSW (Prosecutor)
Topdeck Scaffolding Pty Limited (Defendant)
Representation:
Counsel:
N Read (Prosecutor)
I Latham (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
Wotton & Kearney (Defendant)

File Number(s): 2023/119808

Judgment

Topdeck Scaffolding Pty Limited (Topdeck) was contracted to provide, erect and…

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 215
Decision Date: 14 June 2024

CaseChat Overview and Summary

SafeWork NSW prosecuted Topdeck Scaffolding Pty Limited in relation to an incident where scaffolding erected by the defendant collapsed, leading to significant damage to a neighbouring apartment. The collapse occurred due to inadequate securing of the scaffolding, and the lack of containment sheeting and signage also contributed to the incident. The case was heard in the relevant court where the primary issues were the determination of the company’s criminal liability under the work health and safety legislation, the assessment of the appropriate penalty, and the imposition of costs.

The court examined the objective seriousness of the incident, the mitigating and aggravating factors, and the plea of guilty by the defendant. The collapse posed a significant risk of death or serious injury, which underscored the objective seriousness of the offence. Mitigating factors included the early plea of guilty and the defendant's cooperation with authorities. Aggravating factors involved the inadequate scaffolding and lack of safety measures, leading to the collapse and damage to property. The court considered the need for both general and specific deterrence in its sentencing approach.

After weighing the factors, the court found Topdeck Scaffolding Pty Limited guilty and imposed a fine of $150,000, reduced by 25% due to the early plea of guilty. The court ordered that 50% of the fine be paid to SafeWork NSW and mandated the defendant to pay the prosecution costs. This decision reflects the court's emphasis on accountability and the importance of stringent safety measures in the workplace.

Orders

Orders of the court

(1) Topdeck Scaffolding Pty Limited is convicted.

(2) The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty.

(3) Order Topdeck Scaffolding Pty Limited to pay a fine of $150,000.

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

(5) Order Topdeck Scaffolding Pty Limited to pay the prosecutor’s costs.

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 Topdeck Scaffolding Pty Limited [2024] NSWDC 215
Hearing dates:	7 June 2024
Date of orders:	14 June 2024
Decision date:	14 June 2024
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Topdeck Scaffolding Pty Limited is convicted. (2) The appropriate fine is $200,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Topdeck Scaffolding Pty Limited to pay a fine of $150,000. (4) Order pursuant to Section 122(2) of the Fines Act 1996 (NSW) that 50% of the fine is to be paid to the prosecutor. (5) Order Topdeck Scaffolding Pty Limited to pay the prosecutor’s costs.
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 COSTS – prosecution costs OTHER – scaffolding – scaffolding inadequately secured – containment sheeting and signage – wind – scaffolding collapse – strikes adjacent building – damage to neighbouring apartment
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22 Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 155 Work Health and Safety Regulation 2017 (NSW) cl 291
Cases Cited:	Baumer v R [1988] HCA 67; (1988) 166 CLR 51 Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 BW v R [2011] NSWCCA 176 Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Mahdi Jahandideh v The Queen [2014] NSWCCA 178 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566 R v Wilkinson (No. 5) [2009] NSWSC 432 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465
Texts Cited:	Australian/New Zealand Standard 1576:1:2019 Scaffolding, Part 1: General Requirements, 4 March 2019 Australian Standard 1576:6:2020 Scaffolding Part 6: Metal Tube and Coupler Scaffolding – Deemed to Conform to AS/NZS 1576:1, 6 March 2020 Australian Standard 4576:2020 Guidelines for Scaffolding, 2020 Safe Work Australia General Guide for Scaffold and Scaffolding Work, July 2014 SafeWork NSW Erecting, Altering and Dismantling Scaffolding – Part One: Prefabricated Steel Modular Scaffolding, 31 March 2021 SafeWork NSW Safety Alert Scaffolding Collapse, 6 July 2020
Category:	Sentence
Parties:	SafeWork NSW (Prosecutor) Topdeck Scaffolding Pty Limited (Defendant)
Representation:	Counsel: N Read (Prosecutor) I Latham (Defendant) Solicitors: Department of Customer Service (Prosecutor) Wotton & Kearney (Defendant)
File Number(s):	2023/119808