SafeWork NSW v Cosentino Australia Pty Limited [2018] NSWDC 47

District Court New South Wales

Medium Neutral Citation: SafeWork NSW v Cosentino Australia Pty Limited [2018] NSWDC 47 Hearing dates: 6-10 November 2017, 12-15 February 2018 Date of orders: 09 March 2018 Decision date: 09 March 2018 Jurisdiction: Criminal Before: Judge D. Russell Decision: (1) The elements of the offence set out in the Amended Summons filed on 6 November 2017 have been proved beyond a reasonable doubt. (2) I find Cosentino Australia Pty Limited guilty of the offence. (3) I will list the matter for a sentence hearing on a date convenient to the parties. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – plea of not guilty

PROCEDURAL – charge particularised – proof of elements of charge – question of law – whether defendant had a health and safety duty – whether there was a failure to comply with that duty – whether that failure exposed the employee to serious injury or death

WORK HEALTH AND SAFETY – safe loading system – employee training

OTHER – unsafe loading of stone slabs

STATUTORY CONSTRUCTION – whether the word "and" is cumulative or dispersive Legislation Cited: Work Health and Safety Act 2011 ss 3, 7, 12A, 16, 18, 19, 32, 244 Interpretation Act 1987 Cases Cited: Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 Genner Constructions Pty Limited v WorkCover Authority of NSW [2001] NSWIR Comm 267 at [68] 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 Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 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 Re The Licensing Ordinance (1968) 13 FLR 143 R v ACR Roofing Pty Limited (2004) 11 VR 187 Texts Cited: Second Reading Speech - Work Health And Safety Bill 2011 Pearce and Geddes, Statutory Interpretation in Australia, 8th Edition Safe Work Australia Explanatory Memorandum – Model Work Health And Safety Bill Model Work Health and Safety Act Category: Principal judgment Parties: SafeWork NSW (Prosecutor) Cosentino Australia Pty Ltd (Defendant) Representation: Counsel: Mr M. Moir (Prosecutor) Mr J. Fernon SC (Defendant)