SafeWork NSW v Buddco Pty Limited [2022] NSWDC 549

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Buddco Pty Limited [2022] NSWDC 549 Hearing dates: 2-3 August 2021, 20-23 June 2022, 27 June 2022, 18-20 July 2022, 22 July 2022, 18 August 2022 Date of orders: 14 November 2022 Decision date: 14 November 2022 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) The elements set out in the Amended Summons dated 23 June 2020 have been proved beyond reasonable doubt. (2) I find the defendant Buddco Pty Ltd guilty. (3) The matter will be listed for a Sentence Hearing on a date convenient to the parties. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury OTHER – blockages affected the operation of an ink holding tank and mill – side access hatch was removed before anchor blade was electrically isolated – contractor became trapped between side of the tank and anchor blade – other workers suffered injuries when they entered the tank to assist – electrical isolation procedure inadequate – absence of an external interlock switch or emergency stop – confined space entry permit had only been partially completed – inadequate job safety analysis and confined space entry permit procedures Legislation Cited: Criminal Procedure Act 1986 (NSW), s 133 Evidence Act 1995 (NSW) s 165 Work Health and Safety Act 2011 (NSW), ss 7, 12A, 16, 17, 18, 19, 32, 244, 274 Work Health and Safety Regulation (NSW), cll 5, 36, 66, Cases Cited: Baiada Poultry Pty Limited v The Queen [2012] HCA 14; (2012) 246 CLR 92 Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338 Constantanidis v R [2022] NSWCA 4 Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 Genner Constructions Pty Limited v WorkCover Authority of NSW [2001] NSWIR Comm 267; (2001) 110 IR 57 Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288 Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 Orr v Cobar Managemement Pty Ltd [2019] NSWDC 224 Orr v Hunter Quarries Pty Ltd [2019] NSWDC 364 Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316; (2011) 213 A Crim R 340 Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337 SRA (NSW) v Dawson [1990] 37 IR 110 Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 SafeWork NSW v Arkwood (Gloucester) Pty Ltd [2022] NSWDC 89 Texts Cited: Australian/New Zealand Standard AS/NZS 4024.1503: 2014, Safety of Machinery, 30 June 2014 Australian Standard AS 2865-2009, Confined Spaces, 4 September 2009 Safe Work Australia Code of Practice, How to Manage Work Health and Safety Risks, December 2011 WorkCover NSW, Confined Spaces Code of Practice, December 2011 WorkCover NSW, Managing the Risks of Plant in the Workplace Code of Practice, July 2014 Category: Principal judgment Parties: SafeWork NSW (Prosecutor) Buddco Pty Ltd (Defendant) Representation: Counsel: C Magee (Prosecutor) M Scott with J Simpson (Defendant)