Safe Work (NSW) v Activate Fire Pty Ltd; Safe Work (NSW) v Unity (NSW) Pty Ltd [2017] NSWDC 66

District Court New South Wales

Medium Neutral Citation: Safe Work (NSW) v Activate Fire Pty Ltd; Safe Work (NSW) v Unity (NSW) Pty Ltd [2017] NSWDC 66 Hearing dates: 28, 29, 30 November, 1, 2 December 20166, 7, 8, 9, 10 March 2017 Date of orders: 27 March 2017 Decision date: 27 March 2017 Before: Judge AC Scotting Decision: 1 The elements of the offence have been proved beyond reasonable doubt against each defendant. 2 I find Activate Fire Pty Ltd guilty of the offence. 3 I find Unity (NSW) Pty Ltd guilty of the offence. 4 I will list the matters for mention on 3 April 2017 together with the matter of Hanna Plumbing with a view to listing the matters for sentence on a day convenient to the parties. It appears to me that the defendants and Hanna Plumbing may wish to take issue with the causation of the injury to Mr Gumbleton and if that was the case, it would be convenient to hear all of the parties as to penalty at the same time. 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 - elements of the offence – not guilty – labour hire – labour hire worker – supervision – safe work method statement PROCEDURAL – charge particularised – amendment – proof of elements of charge – burden of proof – proof beyond reasonable doubt - onus WORK HEALTH AND SAFETY – safe work system –– employee training – previous compliance notices – duty Legislation Cited: Work Health and Safety Act 2011 ss. 12A, 19(1), 19(3), 32 Evidence Act 1995 s.144 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 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 SafeWork New South Wales v Rawson Homes Pty Ltd [2016] NSWDC 237 R v ACR Roofing Pty Ltd (2004) 11 VR 187 R v Saffron (No 1) (1988) 17 NSWLR 395 Onetech Pty Ltd v Shaw [1999] WASCA 28 Fitzpatrick v Job [2007] WASCA 63 M R and R C Smith Pty Ltd trading as Ultra Tune (Osborne Park) v Wyatt (No 2) [2012] WASCA 110 GPI (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157 R v Henry [1999] NSWCCA 111 Category: Principal judgment Parties: Safe Work (NSW) (Prosecutor) Activate Fire Pty Ltd (Defendant) Unity (NSW) Pty Ltd (Defendant) Representation: Counsel: Mr M Moir (Prosecutor) Mr C O'Neil (Activate Fire Pty Ltd) Mr C Magee (Unity (NSW) Pty Ltd)