District Court New South Wales Medium Neutral Citation: SafeWork NSW v Landmark Roofing Pty Ltd (No. 3) [2020] NSWDC 675 Hearing dates: 5 November 2020 Date of orders: 9 November 2020 Decision date: 09 November 2020 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Suspend the payment of the fine and costs ordered on 7 August 2020 until further order of the Court on the following conditions: (a) The defendant pay $85,000 into Court by 16 November 2020; (b) The defendant file by 16 November 2020 a written undertaking to prosecute its appeal to the Court of Criminal Appeal with due despatch. (2) Liberty to apply. Catchwords: PROCEDURAL – suspension of payment of fine and costs orders pending appeal – arguable grounds of appeal – balance of convenience – conditions of suspension Legislation Cited: Criminal Appeal Rules (NSW), r 15 Work Health and Safety Act 2011 (NSW) Cases Cited: Burgess v Ors v Mount Thorley Operations Pty Ltd [2002] 119 IR 52 Lyco Industries Pty Ltd v Inspector Buggy [2006] NSWIRComm 19 SafeWork NSW v Landmark Roofing Pty Ltd [2020] NSWDC 202 SafeWork NSW v Landmark Roofing Pty Ltd (No. 2) [2020] NSWDC 420 Category: Procedural and other rulings Parties: SafeWork NSW (Prosecutor) Landmark Roofing Pty Ltd (Defendant) Representation: Counsel: M Moir (Prosecutor) J Glissan QC (Defendant) Solicitors: SafeWork NSW (Prosecutor) Moray & Agnew (Defendant) File Number(s): 2019/83648 Judgment Introduction 1. Landmark Roofing Pty Ltd ("Landmark") was prosecuted by SafeWork NSW under the Work Health and Safety Act 2011 (NSW) ("the Act"). After a hearing on 4, 5, 6 and 8 May 2020, I gave judgment on 15 May 2020 – SafeWork NSW v Landmark Roofing Pty Ltd [2020] NSWDC 202. I found that the elements of the offence set out in the Summons filed on 18 March 2019 had been proved beyond reasonable doubt and I found Landmark guilty of the offence. 2. A sentence hearing took place on 31 July 2020. I gave judgment on sentence on 7 August 2020 – SafeWork NSW v Landmark Roofing Pty Ltd (No. 2) [2020] NSWDC 420. I ordered Landmark to pay a fine of $400,000. I also ordered Landmark to pay the prosecutor's costs. 3. By a Notice of Motion filed on 5 November 2020 Landmark seeks a stay or suspension of the orders made on 7 August 2020. Basis for a Suspension 1. The power to suspend a penalty or costs pending an appeal is found in r 15 of the Criminal Appeal Rules (NSW). 2. Rule 15 is in the following terms: "SUSPENSION OF PENALTY OR COSTS PENDING APPEAL Where a person is ordered to pay money as a penalty or costs, the Judge of the Court of Trial may suspend the payment thereof upon such person entering into recognisances (Forms Nos XX and XXI) to prosecutor an appeal and abide the judgment of the Court thereon, before such persons, in such amount and with or without sureties, or upon any other terms and conditions that such Judge directs." 1. The evidence in support of the application for a suspension was the affidavit of the defendant's solicitor Ms Radley dated 3 November 2020 (DX 11). Ms Radley deposed that Landmark is a small business, with eight employees being four apprentices, three tradesman and one office manager. Landmark also engages between two and six workers by labour hire arrangements. 2. For the 2020/2021 financial year to date, Landmark has recorded a nett loss of $17,918. As at 27 October 2020 Landmark had $108,386.18 in nett assets. Part of its current assets comprised property, equipment and vehicles worth $111,798.45. Obviously such assets are illiquid and are required to run the business. Landmark has current liabilities of $204,682.34 and has a non-current liability of "$(13,721.74)". 3. At the sentence hearing in August 2020 the evidence was that Landmark had a non-current liability of $71,360. This was a loan owed by Landmark to its principal Mr Beacher. Clearly that loan has been completely repaid since the sentence hearing in August 2020. Further, Landmark has lent an additional $13,721.74. Presumably this money has been lent to Mr Beacher. There has thus been a turnaround in non-current liabilities of approximately $85,000. 4. Ms Radley deposed that if Landmark had to pay the penalty imposed by the court before the finalisation of its appeal to the Court of Criminal Appeal, it was highly unlikely that Landmark would also be able to pay the legal costs associated with the appeal. In those circumstances it could not prosecute its appeal. 5. Ms Radley also deposed that paying the penalty prior to finalisation of the appeal "could also cause significant financial hardship to Landmark in the short-term" but there were no reasons given for that opinion. 6. The affidavit of Ms Radley annexed a copy of the Notice of Appeal to the Court of Criminal Appeal dated 8 October 2020. To that Notice was annexed a document entitled "Grounds Of Appeal". The document set out five grounds of appeal and supported those grounds by detailed written submissions which ran to 208 paragraphs. Criteria for a Suspension of Penalty or Costs 1. There was no dispute between the parties as to the principles involved. The order for suspension is discretionary but does not require the demonstration of special or exceptional circumstances to justify the exercise of the discretion. It is sufficient if the defendant can demonstrate arguable grounds for the appeal, and the court will not consider the strength or prospects of the appeal. 2. In Burgess v Ors v Mount Thorley Operations Pty Ltd [2002] 119 IR 52 Justice Walton said at [19]: "The appellant is required to establish or demonstrate a sufficient and proper basis for a stay. The decision as to whether to grant a stay is a discretionary one, to be made by the court after considering, among other factors, the balance of convenience and the rights of the parties. In certain cases, it may be appropriate to consider (as a very preliminary assessment) whether an appellant has a reasonably arguable ground of appeal or whether there is a serious question to be tried." 1. In the present case counsel for the prosecutor submitted that the balance of convenience had to take into account that there was an existing penalty imposed on the defendant and there was a risk to the public purse that if there was a suspension of that penalty and the appeal is unsuccessful, the defendant might not pay the fine. 2. Senior counsel for the defendant submitted that the balance of convenience had to take into account that there was no evidence that, even if further funds were spent on the appeal, the defendant would not be able to pay the fine, by borrowing or resort to some other source of funds. Senior counsel acknowledged that, given that over $70,000 had been repaid in recent months by the defendant to Mr Beacher, it would be appropriate to make it a condition of the stay that $70,000 be paid into court. Consideration 1. Having regard to the detailed submissions already filed in the Court of Criminal Appeal, I find that the defendant has arguable grounds for the appeal which has been lodged. 2. The appeal has already been set down for hearing on 7 April 2021. Thus any suspension of the fine would operate for the next five months until the appeal is heard and then while the judgment of the Court of Criminal Appeal stands reserved. 3. The defendant is still a going concern, although a business of quite modest size. 4. In my judgment on sentence, I found that the defendant had the capacity to pay the fine which I imposed. The only change in circumstances since that point has been the repayment of the loan to Mr Beacher, and a further loan to Mr Beacher (or someone else) of approximately $13,000. The income or assets of the company available to meet a fine have thus been reduced by approximately $85,000. 5. While there was criticism by counsel for the prosecutor of the broad assertions in the affidavit of Ms Radley, there was no cross-examination on that evidence. 6. It would be a substantial imposition upon the defendant if had to pay the entire fine now, but then succeeded on the appeal, which is not to be heard for another five months. The defendant is operating its business in troubled economic times, and it is in the interests of the prosecutor, and of course the defendant, that it continue as a viable entity. 7. I find that the balance of convenience, together with the arguable grounds of appeal, are reasons why I should suspend the orders made on sentence, pending determination of the appeal by the Court of Criminal Appeal. I will make it a condition of the suspension that the defendant pays $85,000 into court within 7 days. Both counsel referred me to the form of orders made in Lyco Industries Pty Ltd v Inspector Buggy [2006] NSWIRComm 19 at [44]. Orders 1. My orders are: 1. Suspend the payment of the fine and costs ordered on 7 August 2020 until further order of the Court on the following conditions: 1. The defendant pay $85,000 into Court by 16 November 2020; 2. The defendant file by 16 November 2020 a written undertaking to prosecute its appeal to the Court of Criminal Appeal with due despatch. 1. Liberty to apply. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 November 2020