SafeWork NSW v Dynamic Formwork Group Pty Ltd [2022] NSWDC 11

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Dynamic Formwork Group Pty Ltd [2022] NSWDC 11 Hearing dates: 7 February 2022 Date of orders: 14 February 2022 Decision date: 14 February 2022 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Dynamic Formwork Group Pty Ltd is convicted. (2) The appropriate fine is $60,000 but that will be reduced by 25% to reflect the early plea of guilty. (3) Order Dynamic Formwork Group Pty Ltd to pay a fine of $45,000. (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 Dynamic Formwork Group Pty Ltd 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 – defendant involved in formwork and falsework - worker erecting deck on eighth floor of 15-storey residential building – fell from eighth floor to concrete slab on seventh floor - reo bar in concrete slab impaled worker's leg – failure to provide adequate supervision - failure to provide adequate instruction and training Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22 Fines Act 1996 (NSW), ss 6, 122 Occupational Health and Safety Act 1983 (NSW) Work Health and Safety Act 2011 (NSW), ss 3, 19, 32 Work Health and Safety Regulation 2017 (NSW) cll 34, 35, 36, 37, 38, 78, 291, 299 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 SafeWork NSW v Ru Gong Li [2018] NSWDC 189 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: WorkCover Formwork Code of Practice 1998 SafeWork NSW, Managing the Risks of Falls at Workplaces, (April 2016) SafeWork NSW, Housing Industry Site Safety Pack, (2016) Category: Sentence Parties: SafeWork NSW (Prosecutor) Dynamic Formwork Group Pty Ltd (Defendant) Representation: Counsel: A Mikkeltvedt (Prosecutor) C Magee (Defendant)