SafeWork NSW v Rahme Civil Pty Ltd [2024] NSWDC 231

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Rahme Civil Pty Ltd [2024] NSWDC 231 Hearing dates: 13 and 20 May 2024 Date of orders: 20 June 2024 Decision date: 20 June 2024 Jurisdiction: Criminal Before: Strathdee DCJ Decision: (1) Rahme Civil Pty Ltd convicted. (2) Rabih Rahme is convicted. (3) The matter will be listed for sentence hearing on a date to be fixed. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury Legislation Cited: Criminal Procedure Act 1986 (NSW) Work Health and Safety Act 2011 (NSW) Cases Cited: Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288 Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Thiess Pty Ltd v Industrial Court of NSW (2010) 78 NSWLR 94; [2010] NSWCA 252 Category: Principal judgment Parties: SafeWork NSW (Prosecutor) Rahme Civil Pty Ltd and Rabih Rahme (Defendants) Representation: Counsel: Mr C Magee (for the Prosecutor) No appearance (for the Defendants)

Solicitors: Department of Customer Service (for the Prosecutor) No appearance (for the Defendants) File Number(s): 2022/376664 2022/376641

Judgment

Introduction 1. By Summonses filed on 14 December 2022 against Rahme Civil Pty Ltd ('Rahme Civil'), the offence was detailed that at 61 Gilgandra Road, North Bondi ('the site'), being a person conducting a business or undertaking, who had a health and safety duty under section 19(2) of the Work Health and Safety Act 2011 (NSW) ('the WHS Act') to ensure so far as was reasonably practicable the health and safety of other persons is not put at risk arising from work carried out as part of the conduct of the defendant's business or undertaking, failed to comply with that duty, which exposed other persons, in particular Jason Maatouk ('Mr Maatouk') and Mesulame Rokoivaulevu ('Mr Rokoivaulevu'), to a risk of death or serious injury, contrary to section 32 of the WHS Act. 2. Further, that on 14 December 2022 at 61 Gilgandra Road, North Bondi, Rabih Rahme ('Mr Rahme'), being an officer of the company who had a duty under section 27(1) of the WHS Act to exercise due diligence to ensure that the company complied with its health and safety duty under section 19(2) of the WHS Act, failed to comply with that duty and the failure to comply with that duty exposed other persons, in particular Mr Mr Maatouk and Mr Rokoivaulevu to a risk of death or serious injury or illness, contrary to section 32 of the WHS Act. 3. In the alternative, on 14 December 2022 at 61 Gilgandra Road, North Bondi, New South Wales, Mr Rahme, being an officer of Rahme Civil, who had a duty under section 27(1) of the WHS Act, to exercise due diligence to ensure that the company complied with its health and safety duty under section 19(1) of the WHS Act, failed to comply with that duty and the failure to comply with that duty exposed workers, in particular Mr Maatouk and Mr Rokoivaulevu, to a risk of death or serious injury or illness, contrary to section 32 of the WHS Act. 4. Mr Rahme and Rahme Civil have not appeared in the proceedings. I am satisfied based on the affidavits that have been filed, that the defendants are aware of the proceedings and chose not to attend. I further note that Rahme Civil continues to operate the business. 5. The matters were before me on 13 and 20 May 2024 for ex parte hearings. The matter proceeded on the basis that Mr Rahme and Rahme Civil have entered pleas of not guilty, and the prosecution is required to prove the elements of the offence beyond reasonable doubt. 6. The prosecutor tendered the following documents, which were marked as exhibits as follows: A Prosecution Tender Bundle [3 volumes] B 5 x A4 Colour Photographs C SafeWork NSW Instrument of Appointment and Authorisation for Michael Holder D CV and Resume of Michael Holder E Inspector's Statement of Inspector Michael Holder dated 22 December 2020 F Inspector Holder's two SafeWork notebooks G Inspector's Statement of Mr Robert Moore dated 2 June 2021 H Inspector's Statement of Inspector Elise Perry dated 9 June 2021 J Inspector's Statement of Inspector Patricia De Leon-Stacey dated 7 January 2022 K Payroll Advices for Rahme Civil Pty Ltd L s 155 Notice to Rahme Civil Pty Ltd – 7-406347 M s 155 Notice to Yahya Hakimi – 7-404881 N Voluntary Statement of Acknowledgment of Mesulame Rokoivaulevu dated 25 October 2021 O Response of Mr Hakimi behind tab 50 of the Prosecution Tender Bundle P Record of Interview between Inspector De Leon-Stacey and Jason Maatouk of 17 March 2021 Q Record of Interview between Inspector De Leon-Stacey and Jason Maatouk of 16 June 2021 R Voluntary Statement of Acknowledgment of Jason Maatouk dated 1 December 2021 S Record of Interview between Inspector De Leon-Stacey and Raymond Tayoun of 9 June 2021 T s 155 Notice to Scopeview Projects and response U Record of Interview between Inspector De Leon-Stacey and Milad Diab dated 9 June 2021 V s 155 Notice to Rahme Civil Pty Ltd and response W Response to s 155 Notice by Rabi Rahme X Rahme Civil Pty Ltd Site Control Plan Y Notes produced by NSW Ambulance service Z Notes produced by NSW Police