SafeWork NSW v Orica Australia Pty Ltd [2024] NSWDC 140

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Orica Australia Pty Ltd [2024] NSWDC 140 Hearing dates: 19 April 2024 Date of orders: 1 May 2024 Decision date: 01 May 2024 Jurisdiction: Criminal Before: Russell SC DCJ Decision: (1) Orica Australia Pty Ltd is convicted. (2) The appropriate fine is $1,500,000 but that will be reduced by 20% to reflect the early plea of guilty. (3) Order Orica Australia Pty Ltd to pay a fine of $1,200,000. (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 that each party pay its own costs of the Notice of Motion filed by Orica Australia Pty Ltd on 28 July 2022. (6) Order Orica Australia 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 COSTS – prosecution costs OTHER – industrial chemical manufacturing – cobalt dust – occupational asthma – insufficient personal protective equipment – insufficient ventilation – no decontamination facility or process – failure to take corrective action Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22 Fines Act 1996 (NSW), ss 6, 122 Work Health and Safety Act 2011 (NSW), ss 3, 19, 31 Cases Cited: Aubrey v R [2017] HCA 18; (2017) 260 CLR 305 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 Synergy Scaffolding Services Pty Ltd [2022] NSWDC 584 Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266 Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465 Texts Cited: Australian and New Zealand Standard AS/NZS 1715:2009, Selection, Use and Maintenance of Respiratory Protective Equipment, 2009 Australian and New Zealand Standard AS/NZS1716:2012, Respiratory Protective Devices, January 2012 Australian and New Zealand Standard AS/NZS4501.1:2008, Occupational Protective Clothing Part 1: Guidelines on the Selection, Use and Maintenance of Protective Clothing, 30 June 2008 Australian National Industrial Chemicals Notification and Assessment Scheme, Cobalt Oxide: Human Health Tier II Assessment, 27 November 2014 Australian Standard AS3544-1988 Industrial Vacuum Cleaners for Particulates Hazardous to Health, 15 July 1988 Safe Work Australia Code of Practice, Managing Risks of Hazardous Chemicals in the Workplace, July 2012 SafeWork NSW Code of Practice, Managing the Work Environment and Facilities, August 2019 Safe Work Australia, Workplace Exposure Standards for Airborne Contaminants, April 2013 WorkCover NSW, Chemical Analysis Branch Handbook: Workplace and Biological Monitoring Exposure Analysis (9th ed, n.d) Category: Sentence Parties: SafeWork NSW (Prosecutor) Orica Australia Pty Ltd (Defendant) Representation: Counsel: J Agius SC and M Moir (Prosecutor) P McDonald SC and N Read (Defendant)