SafeWork NSW v Miller Logistics Pty Ltd;; SafeWork NSW v Mitchell Doble [2024] NSWDC 58

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Miller Logistics Pty Ltd;; SafeWork NSW v Mitchell Doble [2024] NSWDC 58 Hearing dates: 12, 13, 14, 16 February 2024 Date of orders: 8 March 2024 Decision date: 08 March 2024 Jurisdiction: Criminal Before: Russell SC DCJ Decision: In relation to the Miller Logistics Pty Ltd Summons in proceedings No. 2022/144479: (1) The allegations set out in par 14(a), (b), (c), (d), (g), (h) and (i) in the Summons have been proved beyond reasonable doubt. (2) I find the defendant Miller Logistics Pty Ltd guilty. (3) The matter will be listed for sentence hearing on a date convenient to the prosecutor. In relation to the Mitchell Doble Summons in proceedings No. 2022/144530: (1) The prosecution has not proved all of the elements of the offence beyond reasonable doubt. (2) Final orders will not be entered until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW). (3) The matter will be listed on a date suitable to the parties for determination of costs, entry of final orders, or argument on the proposed questions of law to be stated to the Court of Criminal Appeal. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury CRIMINAL LAW – prosecution – work health and safety – duty of officers – due diligence – risk of serious injury or death OTHER – forklift hit pedestrian worker at depot – inadequate traffic management plan – no separation of pedestrians and forklifts OTHER – due diligence – work health and safety systems, processes and resources – verification – delegation – compliance officer Legislation Cited: Corporations Act 2001 (Cth), s 9 Criminal Appeal Act 1912 (NSW), s 5AE Criminal Procedure Act 1986 (NSW), s 133(2) Evidence Act 1995 (NSW), s 165 Work Health and Safety Act 2011 (NSW), ss 3, 4, 7, 12A, 16, 17, 18, 19, 27, 32 Work Health and Safety Regulation 2017 (NSW), cll 39, 214 Cases Cited: Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (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 Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57 Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 Orr v LakeCoal Pty Ltd [2019] NSWDC 178 Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 SafeWork NSW v Hetherington [2019] NSWDC 11 SafeWork NSW v Miller Logistics; SafeWork NSW v Mitchell David Doble [2023] NSWDC 252 Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316; (2011) 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 Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 WorkCover Authority of New South Wales (Inspector Mansell) v Daly Smith Corporation (Aust) Pty Ltd and Smith [2004] NSWIRComm 349 WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 Texts Cited: Code of Practice Managing the Risks of Plant in the Workplace dated August 2019 Forklifts Induction Sheet for Owners and Operators, Safe Work Australia, July 2014 General Guide for Industrial Lift Trucks, Safe Work Australia, July 2014 Michael Tooma, Tooma's Annotated Work Health and Safety Act 2011, (Thomson Reuters, 2nd Edition) Occupational Health and Safety Law NSW, LexisNexis Traffic Hazard Checklist Safe Work Australia, July 2014 Category: Principal judgment Parties: SafeWork NSW v Miller Logistics Pty Ltd SafeWork NSW v Mitchell Doble Representation: Counsel: M Scott (Prosecutor) Mr Baroni / A Horne (Defendant Mitchell Doble)