HEADNOTE
[This headnote is not to be read as part of the judgment]
JBS Australia Pty Ltd (the appellant) operates a number of meat processing facilities and feedlots. On 19 February 2020, an employee (Ms Belinda Fletcher) was carrying out moisture testing on two hay bales, in the vicinity of a partly constructed stack, when two bales, each weighing around 700 kg, fell onto her from the stack, causing serious injuries.
On 11 February 2022 SafeWork NSW (the respondent) commenced a prosecution of the appellant under s 32 of the Work Health and Safety Act 2011 (NSW) for breach of its health and safety duty. The charge was heard by Scotting DCJ (the trial judge) exercising the summary jurisdiction of the District Court. The appellant argued that it had identified the relevant risk of falling hay bales and adopted general practices to minimise the risk. It further contended that Ms Fletcher had been specifically trained as to, and understood, that risk.
On 19 September 2023 the appellant was found guilty. On 8 November 2023 the trial judge convicted the appellant and imposed a $300,000 fine, 50% of which was to be paid to the respondent as a moiety.
On 2 July 2024 the appellant filed a notice of appeal challenging the conviction and the order for payment of the moiety to the respondent (but not the penalty itself). The challenge addressed:
(i) the scope of the appeal;
(ii) findings regarding Ms Fletcher's training;
(iii) the finding as to breach of duty;
(iv) the finding as to causation; and
(v) the order for payment of a moiety.
The Court (Basten AJA, Ward P and N Adams J agreeing) held:
As to issue (i) (the scope of the appeal)
1 An appeal under s 5AA of the Criminal Appeal Act 1912 (NSW) was not to be dealt with de novo, nor as an appeal by way of rehearing. However, like an appeal by way of rehearing, the appellant was required to identify error on the part of the trial judge. The scope of inquiry in an appeal in the "strict sense" must be more limited than an appeal by way of rehearing. In relation to the appellant's challenges to fact-finding, the Court should not make its own findings unless satisfied that the trial judge's findings were attended by error: [13], [23], [24], [32].
Ah Yick v Lehmert (1905) 2 CLR 593 at 601; [1905] HCA 22; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Lacey v Attorney-General for the State of Queensland (2011) 242 CLR 573; [2011] HCA 10; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 applied; Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 explained; Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7; Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661 considered.
As to issue (ii) (the trial judge's fact-finding)
2 Ms Fletcher, whose evidence was accepted by the trial judge, denied having been trained about the relevant risks. Given the findings as to her credit and reliability as a witness, it was not possible to identify a relevant error by the trial judge in his acceptance of her evidence. Further, the trial judge did not err in finding that her training was deficient, noting that she was not trained in how to deal with unusual or novel situations or the relevant safety measures to be taken: [67], [75]-[77], [79]-[82].
As to issue (iii) (breach of duty)
3 There was no error in the trial judge's conclusion that the appellant had not undertaken a risk assessment for moisture testing hay bales, and no suggestion that it was not a reasonably practical step that the appellant could have taken prior to the incident: [101]. The appellant's submission that the trial judge ignored evidence given by other employees contrary to that given by Ms Fletcher's did not address the finding that they had been given instructions not given to her: [108].
4 The trial judge's findings that the appellant failed to develop safe work practices for moisture testing and hay stacking were not attended by error. It was open to him on the evidence to find that general practices based on oral instruction and absent a formal risk assessment were inadequate to guard against the known risks. The development of such procedures in a reasonably short time after the incident, provided a sufficient factual basis for finding that such steps would have been reasonably practicable: [113]-[126], [127].
Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304; [2001] HCA 6 applied.
5 The appellant did not identify any error with the trial judge's finding that Ms Fletcher's on the job training was inadequate and that proper training could have been provided at minimal cost and inconvenience: [131].
As to issue (iv) (causation)
6 The appellant did not identify any separate error in the trial judge's conclusion on causation, but rather relied on alleged errors in the findings as to the inadequacy of the training. The appellant's challenges were not independent, but rather sought to explain the bases of that training. The appellant's duty was to take reasonably practicable steps to address the pleaded risk, and speculation as to whether an individual worker would have followed instructions which were not provided was irrelevant: [135], [137], [139].
As to issue (v) (the moiety)
7 The appellant failed to demonstrate error in the order to pay a moiety. The suggested anomaly in the absence of power to pay a moiety to a police officer, but not to other public officers, was inherent in the legislative scheme; as was the capacity to order payment to a statutory law enforcement agency where the fine itself will be paid to the State which is responsible for law enforcement: [146]. In any event, these were not mandatory considerations which the trial judge ignored. Finally, the contentions were not raised in these terms before the trial judge: [146]-[150].
Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240; Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 applied.