SafeWork NSW v MACFIN Building Solutions Pty Ltd [2020] NSWDC 776

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v MACFIN Building Solutions Pty Ltd [2020] NSWDC 776 Hearing dates: 27 November 2020 Date of orders: 18 December 2020 Decision date: 18 December 2020 Jurisdiction: Criminal Before: Strathdee DCJ Decision: (1) The defendant is convicted. (2) The appropriate fine is $200,000.00 and that will be reduced by 25% to reflect a plea of guilty. (3) Accordingly, I order defendant pay a fine of $150,000.00. (4) Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine imposed is to be paid to the prosecutor. (5) I make no order as to costs. Catchwords: CRIME – work health and safety – risk of death or serious injury – duty of person undertaking business PROCEDURAL – reasonable practicability – likelihood of risk – knowledge of the risk – what the defendant ought reasonably have known OTHER – fall from height in unprotected void – risk of the dangers posed by the void were known – failure to adequately implement work health and safety management system plan – inadequate fall protection Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Fines Act 1996 (NSW) Work Health and Safety Act 2011 (NSW) Work Health and Safety Regulation 2011 (NSW) Cases Cited: Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 Capral Aluminium Limited v WorkCover Authority of NSW [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Environmental Protection Authority v Barnes [2006] NSWCCA 246 Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92 Kirk v Industrial Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531; [2010] HCA 1 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (1999) 90 IR 464 Markarian v The Queen (2005) 228 CLR 357 Morrison v Powercoal Pty Limited & Anor (No.3) [2005] NSWIRComm 61 Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96 Orbit Drilling v The Queen; Smith v The Queen [2012] VSCA 82 R v Cage [2006] NSWCCA 304 R v Miria [2009] NSWCCA 68 SafeWork NSW v Emu Group Pty Limited [2019] NSWDC 537 SafeWork NSW v HCM Building Pty Limited [2019] NSWDC 632 Veen v R (No. 2) (1988) 164 CLR 465 WorkCover Authority (NSW) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 Texts Cited: SafeWork Australia Managing the Risk of Falls at the Workplace Code of Practice (April 2016) WorkCover Preventing Falls in Housing Construction Code of Practice (July 2014) Category: Sentence Parties: SafeWork NSW (Prosecutor) MACFIN Building Solutions Pty Ltd (Defendant) Representation: Counsel: Ms S Callan SC with Mr Hawila (Prosecutor)