Safe Work NSW v Wollongong Glass P/L [2016] NSWDC 58

District Court New South Wales

Medium Neutral Citation: Safe Work NSW v Wollongong Glass P/L [2016] NSWDC 58 Hearing dates: 19, 21, 22, 23, 26,27 October; 2, 6, 24 November, 3 December 2015 Date of orders: 28 April 2016 Decision date: 31 March 2016 Jurisdiction: Civil Before: Judge AC Scotting Decision: 1. Since delivering reasons on 31 March 2016 I have been advised that the prosecution does not wish to make an application to the Court of Criminal Appeal and that the parties have not asked me to resolve the amendment application. 2. I find the defendant not guilty. 3. The Summons is dismissed. 4. The parties have agreed that the prosecution is to pay the defendant's costs as agreed or assessed on the ordinary basis. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of employee – offence – not guilty - PROCEDURAL – charge particularised – amendment – proof of elements of charge – question of law WORK HEALTH AND SAFETY – safe work system – buddy system – employee training – previous compliance notice OTHER – glass – factory - unsafe Legislation Cited: Occupational Health and Safety Act 2000 s 8(2) Work Health and Safety Act 2011 ss 12A, 19, 32, 244 Work Health and Safety Regulation 2011 Cl 5 Criminal Appeal Act 1912 s5AE Cases Cited: Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 Bulga Underground Operations v Nash [2016] NSWCCA 37 Royall v The Queen (1991) 172 CLR 378 Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 Walplan Pty Ltd v Wallace (1985) 8 FCR 27 Category: Principal judgment Parties: Safe Work NSW (Prosecutor) Wollongong Glass (Defendant) Representation: Counsel: Ms P McDonald SC with Mr M Moir (Prosecutor) Mr A Moses SC with Mr D O'Neil and Ms J Alderson