SafeWork NSW v Norske Skog Paper Mills (Australia) Limited [2020] NSWDC 559

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Norske Skog Paper Mills (Australia) Limited [2020] NSWDC 559 Hearing dates: 15 September 2020 Date of orders: 25 September 2020 Decision date: 25 September 2020 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) The defendant Norske Skog Paper Mills (Australia) Limited was convicted on 15 September 2020. (2) The appropriate fine is $1,350,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order the defendant Norske Skog Paper Mills (Australia) Limited to pay a fine of $1,012,500. (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 the defendant Norske Skog Paper Mills (Australia) Limited to pay the prosecutor's costs. (6) Make the following orders 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 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 Benjamin Pascall, Lyndon Quinlivan and Thomas Johnson were exposed to a risk of death or serious injury on 24 May 2018 (the material date); (ii) the risks to which the workers were 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 Benjamin Pascall, Lyndon Quinlivan and Thomas Johnson were exposed on the material date as far as is reasonably practicable; (iv) other guidance material applicable to safe work in on or around confined spaces as deemed appropriate by SafeWork NSW; (v) other guidance material applicable to the management of risks associated with the biological generation of Hydrogen Sulphide; (vi) distribution plan for the video. (b) The content of the project and the provider of the project are to be approved by SafeWork NSW; (c) Within two months of the date of these Orders, the defendant is to attend a meeting with SafeWork NSW, to submit for review and approval a written plan for completion of the project, including the content of the project, the provider of the project and a distribution plan for the final product. (d) The defendant is to agree that the copyright and all exhibiting and distribution rights in relation to the project, including in relation to the educative animated video, are to be held exclusively by SafeWork NSW, subject to the defendant holding an unrestricted and fee-free licence to: (i) use the educative animated video within the operations and mills of the Norske Skog Group internationally for its own purposes; and (ii) share the educative animated video with industry associations which the Norske Skog Group is a part of (including the Australian Forest Products Association) for distribution to members. (e) 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. (f) Liberty to restore the matter before the Court if 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 not limited to activities in one State in Australia – capacity to pay –appropriate penalty COSTS – prosecution costs OTHER – paper mill workers were performing routine maintenance during scheduled shutdown period – hydrogen sulphide gas venting from the top of a storage tank – absence of specialist confined space risk assessment – failure to identify the area above the tank as a confined space – failure to eliminate or minimise the risk of the formation of hydrogen sulphide in storage tanks – failure to provide personal hazardous gas monitors – failure to provide sufficient information, instruction and training in respect of potential gas exposure – absence of adequate ventilation exhaust system and stored filtrate monitoring system Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 19, 32, 235, 238 Work Health and Safety Regulation 2017 (NSW), 5, 49, 50, 351 Cases Cited: Attorney General for the State of New South Wales v Ceerose Pty Limited [2019] NSWCCA 35 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 WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 Texts Cited: Australian Standard 2895-2009, Confined Spaces SafeWork NSW Code of Practice, Confined Spaces, December 2011 SafeWork NSW Code of Practice, Managing Hazardous Chemicals, July 2014 Workplace exposure standards for airborne contaminants, SafeWork Australia, 27 April 2018 Category: Sentence Parties: SafeWork NSW (Prosecutor) Norske Skog Paper Mills (Australia) Limited (Defendant) Representation: Counsel: C Magee (Prosecutor) B Hodgkinson SC (Defendant)