Kalidonis NT Pty Ltd v Work Health Authority [2025] NTSC 28

Return to Work Act 1986 (NT) ss 3, 3A, 52, 53, 62, 64, 65, 70, 71, 72, 126A

Return to Work Regulations 1986 (NT)

AB v The King [2023] NTCCA 8; Anderson v Canaccord Genuity Financial Ltd [2023] NSWCA 294; Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92; Comcare v Commonwealth [2007] FCA 662; (2007) 163 FCR 207; Comcare v Department of Defence [2021] NTLC 023; Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; (2016) 249 FCR 421; Director of Public Prosecutions (Vic) v Amcor Packaging Australia Pty Ltd [2005] VSCA 219; (2005) 11 VR 557; Director of Public Prosecutions (Vic) v Frewstal Pty Ltd [2015] VSCA 266; (2015) 47 VR 660; Director of Public Prosecutions (Vic) Reference No 1 of 1996 [1998] 3 VR 352; Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47; Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288; Hillman v Bridgestone Australia Ltd [2011] SAIRC 1; Mason v The King [2024] NTCCA 13; Markarian v The Queen (2005) 228 CLR 357; Meridian Global Fund Management Asia v Securities Commission [1995] 2 AC 500; NS v Dunne [2021] NTSC 77; Perry v Exactmix Pty Ltd [2014] SAIRC 7; Pikos v O'Neill [2024] NTSC 6; QBE Underwriting Ltd v Southern Colliery Maintenance Pty Ltd [2018] NSWCA 55; (2018) 97 NSWLR 459; R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; (2006) 14 VR 321; SafeWork NSW v Saunders Civilbuild Pty Ltd (unreported, NSWSC, 18 May 2022); Truong v The Queen [2015] NTCCA 5; (2015) 35 NTLR 186; Titan Plant Hire Pty Ltd v Work Health Authority [2023] NTSC 88; Work Health Authority v Whittens Pty Ltd (unreported, NTLC, [2023]); Work Health Authority v Outback Ballooning (unreported, NTSC, 22 July 2021), referred to

Kalidonis NT Pty Ltd v Work Health Authority [2025] NTSC 28

• [1] On 11 and 20 March 2020, an excavator operator ('deceased') employed by the appellant ('Kalidonis') used an excavator ('Hyundai excavator') to tow another excavator ('Caterpillar excavator') using chain. On both occasions, the chain snapped. On the second occasion, the chain struck the deceased in the head, causing his death.
• [2] On 23 August 2024, following a contested hearing, Kalidonis was found guilty by the Local Court of two counts of breaching s 32 of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) ('WHS Act'),[1] which creates an offence of failing to comply with a health and safety duty and thereby exposing an individual to a risk of death or serious injury. The health and safety duty of Kalidonis arose under s 19 of the WHS Act and was to ensure, so far as is reasonably practicable, the health and safety of workers engaged by it while they are at work.
• [3] On 18 February 2025, the Local Court convicted Kalidonis of the offences and sentenced it to a fine of $400,000 on Count 1 and a fine of $550,000 on Count 2, 'entirely concurrent with Count 1'. The effect was a total fine of $550,000.[2]
• [4] Kalidonis appealed against the convictions, asserting various errors on the part of the Local Court, and appealed against the sentence imposed on the ground of manifest excess.

Nature of the appeal and the Court's approach to facts

• [5] By its amended notice of appeal, Kalidonis raised three grounds of appeal against conviction, as follows:

(a) The Local Court erred in its approach to, and erred in, the factual findings it made, leading to its findings that both offences had been committed, in particular, by failing to have regard to the unchallenged evidence of Theofilos Kalidonis and the applicable criminal standard of proof ('Ground 1').

(b) The verdicts are unreasonable and not supported by the evidence ('Ground 2').

(c) The Local Court erred in its approach to s 32 of the WHS Act by misapplying the test in s 19 of the WHS Act, as it applied to the facts of the case ('Ground 3'). Ground 3 had three sub-grounds, as follows:

(i) The Local Court misapprehended the case put by the appellant ('Ground 3.1').

(ii) The Local Court failed to address itself to the reasonable steps taken by the appellant to address the risks to the safety of workers ('Ground 3.2').

(iii) The Local Court erred in finding that the particularised reasonable steps should have been taken and would have prevented exposure of workers to the risks ('Ground 3.3').

• [6] The appeal was brought under s 163(1) of the Local Court (Criminal Procedure) Act 1928 (NT) ('LCCPA'), which permits a party to appeal to this Court from a conviction, order or adjudication of the Local Court on a ground which involves: (a) sentence; or (b) an error or mistake on a matter or question of fact alone, or a matter or question of law alone, or a matter or question of both fact and law.
• [7] By s 177(1) of the LCCPA, an appeal must be heard and determined by this Court 'in a summary way' and this Court has all the powers and duties, as to amendment or otherwise, of the Local Court. By s 177(2), this Court may (relevantly): mitigate or increase any penalty; affirm, quash or vary the conviction, order or adjudication appealed from or substitute or make any conviction, order or adjudication which ought to have been made by the Local Court; or remit the case for hearing or for further hearing before the Local Court. Further, by s 177(2)(f), notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, this Court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

Convictions unsafe or not supported on the evidence

• [8] There is no express provision in the LCCPA to the effect that this Court may entertain an appeal on the basis that a conviction is 'unsafe' or 'cannot be supported having regard to the evidence'. Nevertheless, both parties accepted that there is a clear body of authority[3] which:

(a) accepts that the appeal provisions of the LCCPA confer jurisdiction on this Court to entertain such an appeal; and

(b) requires this Court, in deciding such an appeal, to make its own independent assessment of the evidence and determine whether, notwithstanding that there is evidence upon which the Local Court might convict, it thinks that upon the whole of the evidence it was open to the Local Court to be satisfied beyond reasonable doubt that the accused was guilty, paying full regard to the considerations that the Local Court was the body entrusted with the primary responsibility of determining guilt or innocence, and that the Local Court had the benefit of having seen and heard the witnesses. This determination requires consideration of whether the Local Court must, as distinct from might, have entertained a doubt about guilt.

• [9] The respondent ('Authority') charged Kalidonis on complaint with two counts that, on 12 and 20 March 2020, Kalidonis had a duty under s 19(1)(a) of the WHS Act to ensure, so far as reasonably practicable, the health and safety of workers engaged by it while they are at work, failed to comply with that duty, and the failure exposed the deceased to a risk of death or serious injury, contrary to s 32 of the WHS Act.

• [10] The complaint set out further particulars of the elements of the charged offences. Essentially, it was pleaded that:

(a) Recovering the Caterpillar excavator using towing systems is high risk work that was extremely hazardous to the health and safety of workers and exposed them to the risk of death or serious injury through shock load impact resulting from towing system failure.[4]

(b) Kalidonis' duty was to eliminate or minimise the risk of towing system failure and resultant shock load impact so far as was reasonably practicable.[5]

(c) The failure of towing systems not designed to withstand the maximum pull force available from the pulling equipment is highly likely and, if overloaded, towing systems which introduce a high shock load impact upon failure are likely to result in death or serious injury to anyone in the vicinity.[6]

(d) Kalidonis knew or ought reasonably to have known: (i) about those likelihoods; and (ii) that there were cost proportionate safe towing systems readily available.[7] Kalidonis procured a suitable safe towing system on 8 March 2020.[8]

(e) Kalidonis knew the deceased used a dangerous towing system on 12 March 2020, that is, a towing system not designed to withstand the maximum pull force from the pulling equipment which, when overloaded, failed and introduced a high shock load impact, without systems designed to minimise those likelihoods.[9]

(f) Between 15 February and 20 March 2020, in the circumstances known to Kalidonis, it was reasonably practicable for Kalidonis to take the following measures for ensuring workers' health and safety, namely:

(i) ensure workers did not tow or attempt to tow the Caterpillar excavator until the safe towing system was available by:

(1) tagging out, locking, securing and preventing access to the Caterpillar excavator to ensure it was not towed or attempted to be towed without the safe towing system;[10] and/or

(2) providing an unequivocal direction to workers to abstain from towing or attempting to tow the Caterpillar excavator without the safe towing system;[11] and/or

(3) reinforcing to workers the consequences to them if they did so;[12] and/or

(4) monitoring the workplace and carrying out safety assurance audits to ensure workers complied with the direction;[13] and/or

(5) implementing effective deterrence measures and appropriate sanctions to ensure compliance with the direction;[14]

(ii) provide a safe towing system when it was available and ensuring it was used;[15]

(iii) ensure a risk assessment was carried out before towing commenced or was attempted and workers were provided with safe systems of work and a Safe Work Method Statement ('SWMS') which specified the risks to health and safety, described measures to control the risks and how those control measures were to be implemented, monitored and reviewed;[16]

(iv) make arrangements to ensure towing was carried out using the safe towing system and in accordance with the SWMS,[17] and workers were trained in that system and supervised to ensure work was carried out in accordance with the safe systems of work and the SWMS;[18]

(v) make arrangements to ensure towing was supervised and that work stopped immediately or as soon as it was safe to do so if towing was not carried out in accordance with the safe systems of work and SWMS;[19]

(vi) monitor the workplace and carry out safety assurance audits to ensure workers only used the safe towing system and complied with the safe systems of work and SWMS;[20]

(vii) implement effective deterrence measures and sanctions for noncompliance with the safe systems of work and SWMS.[21]

(g) On 12 March 2020, knowing that a safe towing system was required to eliminate or minimise the risks to health and safety of workers, Kalidonis failed to implement the reasonably practicable measures, and the deceased used the Hyundai excavator to tow the Caterpillar excavator using the dangerous towing system, which failed multiple times, exposing the deceased to risk of death or serious injury (Count 1).[22]

(h) On 20 March 2020, knowing that the deceased used the dangerous towing system, and that it failed numerous times, Kalidonis failed to implement the reasonably practicable measures and the deceased used the Hyundai excavator to tow the Caterpillar excavator using the dangerous towing system, exposing the deceased to risk of death or serious injury, which failed, and caused his death (Count 2).[23]

Ground 2 - Verdicts unreasonable and not supported by the evidence

• [11] In light of the principles set out in paragraph [8] above, the parties were agreed that this Court should address Ground 2 first, and should do so as follows: review the evidence for itself, particularly that of Mr Kalidonis, adopt the intermediate findings of fact of the Local Court about which no complaint is made in the appeal, reach its own view of the evidence to the extent necessary to address the arguments on appeal, make its own intermediate findings of fact to the extent relevant findings were not made by the Local Court or were not open on the evidence, and determine whether this Court has a reasonable doubt about the ultimate finding of guilt which cannot be resolved by taking into account the Local Court's advantage in seeing and hearing th[24]evidence.24 The intermediate findings adopted or made by this Court should then form the basis for consideration of Grounds 1 and 3.
• [12] It was put by the appellant, without demur by the respondent, that there were no credibility findings based on demeanour and, consequently, there is no identified advantage to the Local Court to be taken into account by this Court.
• [13] Many intermediate facts found by the Local Court were not in dispute. Those found facts are indicated below by reference to the Reasons. Where no factual finding was made by the Local Court or there was a factual issue between the parties on the appeal, reference will be made to the evidence relating to that issue as well as the Reasons (if a factual finding about that issue was made), along with my findings.

• [14] Before 2020, Kalidonis won a tender to upgrade the barge landing at Maningrida ('Maningrida project').[25] In respect of the Maningrida project, Kalidonis was a person conducting a business or undertaking within the meaning of s 19 of the Act.[26]
• [15] In January 2020, the deceased was engaged by Kalidonis as a sub-contractor to perform excavation work on the barge landing as part of the Maningrida project.[27] On 30 January 2020, the deceased signed an acknowledgement of Kalidonis' rules, including that all 'safety rules' must be obeyed and failure to do so 'will result in strict disciplinary action being taken'.[28]
• [16] The deceased had 30 years' experience in heavy machinery work in construction projects in the Northern Territory.[29] Mr Kalidonis had never worked with the deceased before the Maningrida project.[30]
• [17] The deceased was a worker engaged by Kalidonis, and there were also other workers engaged by Kalidonis, within the meaning of s 19 of the Act.[31]
• [18] It was not in dispute that Mr Kalidonis was the sole director of Kalidonis. Mr Kalidonis worked in Darwin and would fly to and from Maningrida to check on the work being done.[32]
• [19] Kalidonis' workers included the following employees involved in the Maningrida project:

(a) Cosmus Pastrikos, site manager, based in Maningrida;[33]

(b) George Zografakis, leading hand, based in Maningrida;[34]

(c) Jacinta Kelly, general manager of Kalidonis and project manager for the Maningrida project, based in Darwin;[35]

(d) Nikolaos (Nik) Pizanias, project manager and safety adviser, based in Darwin;[36]

(e) Milan Thapa, civil engineer, based in Maningrida;[37]

(f) from 10 March 2020, the deceased, civil operator, based in Maningrida;[38]

(g) up to 15 February 2020, Jeremy Leach, civil operator, based in Maningrida;[39]

(h) Ross Brian, resident of Maningrida, labourer;[40] and

(i) a number of other labourers based in Maningrida.[41]

• [20] Section 19(1) of the Act provides (relevantly) that a person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of workers engaged by the person, while the workers are at work in the business or undertaking. Section 18 of the WHS Act provides that 'reasonably practicable' means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including: (a) the likelihood of the hazard or the risk concerned occurring; (b) the degree of harm that might result from the hazard or the risk; (c) what the person concerned knows, or ought reasonably to know, about the hazard or the risk and ways of eliminating or minimising the risk; (d) the availability and suitability of ways to eliminate or minimise the risk; and (e) after assessing the extent of the risk and the available ways of eliminating or minimising it, the cost associated with available ways of doing so, including whether the cost is grossly disproportionate to the risk.
• [21] Kalidonis owed to the deceased and other workers undertaking work on the Maningrida project the duty referred to in s 19(1) of the Act.[42]

How to identify Kalidonis' state of mind and its acts or omissions

• [22] Kalidonis was the entity charged with the offences. As a body corporate, it acts through its officers and relevant employees. The deceased was an employee with responsibility for civil works and excavator operation. Prima facie, his acts whilst operating an excavator for the purposes of his responsibilities in the Maningrida project are those of Kalidonis, his employer.
• [23] An offence against s 32 of the WHS Act does not contain any mental element, and strict liability applies to each of its physical elements.[43]
• [24] However, the allegations in the complaint refer to Kalidonis' awareness or knowledge of certain matters. It is clear that Kalidonis' state of mind included, but was not limited to, the knowledge of Mr Kalidonis.[44]
• [25] To determine what a body corporate 'knows' requires a process of attribution.[45] There are no statutory provisions in the WHS Act, or relevantly in the Criminal Code,[46] which address the attribution of knowledge to a body corporate. It follows that the process of attribution must be according to the principles of the common law, which takes into account the context and purpose of the WHS Act.[47]
• [26] Knowledge may be knowledge of a body corporate if it is known by the officer or agent who is the appropriate one for the particular enquiry, or if it is contained in current official records of the body corporate.[48] In the present case, it is sufficient to say that Kalidonis' knowledge of matters related to safety in the workplace, including towing or attempting to tow the Caterpillar excavator with chain, was comprised of the knowledge of Mr Kalidonis and of those employees of Kalidonis who were responsible for matters of safety in the workplace. This is addressed further below.
• [27] The question for the Local Court was whether Kalidonis (the company) had failed to provide and maintain a safe working environment and a safe system of work, and to decide whether, on the evidence of the deceased's acts and omissions, and the resultant serious risks to which he and other workers were exposed, Kalidonis had done everything reasonably practicable to ensure the safety of its workers.[49] It is immaterial to the question of liability at what level in the hierarchy of employees the safety breach occurs.[50] In other words, the liability of the company does not depend upon a failure by the person or persons who 'embody' the company to take all reasonable precautions.[51]
• [28] A safe system of work will only protect workers from risks to their safety if it is accompanied by the employer's active implementation of the safe work system in the workplace, and the employer's duty requires the employer to ensure that procedures and instructions are actively and positively complied with by employees, with ongoing supervision and constant monitoring to ensure that the system is being applied in practice.[52] An employer should recognise that it is common experience that human error will be encountered in the workplace, which can range from inadvertence, inattention or haste through foolish disregard of personal safety to deliberate non-compliance with the prescribed safe system of work.[53]

Towing the Caterpillar excavator using chain was extremely hazardous

• [29] Towing an excavator with chain not designed for towing heavy machinery is a risky task because the chain can suddenly break and the shock load can cause death or serious injury.[54] The fact that chain used to attempt to tow the Caterpillar excavator did snap (see below) demonstrates that the risk that chain not designed for towing heavy machinery would snap was real and obvious.[55]

The Caterpillar excavator became stranded on the tidal flats

• [30] In mid-February 2020, it became apparent that the access channel to the new barge ramp was not deep enough in a small area.[56] Mr Kalidonis told the deceased not to worry about rectifying the issue as it was not worth it.[57]
• [31] On 15 February 2020, the deceased ignored this direction and took the Caterpillar excavator to that area, where the deceased and his son, Jeremy Leach, excavated the area at low tide.[58]
• [32] The engine of the Caterpillar excavator failed and it could not be retrieved from the tidal flats before being submerged by the incoming tide.[59]

Deceased attempted to tow the Caterpillar excavator on 15 February

• [33] On 15 February 2020, the deceased called Mr Pastrikos to tell him the Caterpillar excavator was down and needed to be pulled out, and asked Mr Pastrikos for assistance.[60]
• [34] Mr Pastrikos' role with Kalidonis was to ensure, with Mr Kalidonis, that the workers were working in accordance with the applicable SWMS.[61] He conducted inductions for workers and others who came to the worksite, and convened 'toolbox meetings' about the daily work as part of that function.[62]
• [35] Mr Pastrikos told the deceased to wait while he got a spotter (for crocodiles) and went to get Mr Zografakis.[63]
• [36] Mr Zografakis was a labourer employed by Kalidonis.[64]
• [37] The deceased asked Timothy Stonhill, an employee of Bawinanga Aboriginal Corporation ('BAC'),[65] if he had any chains the deceased could use to pull the Caterpillar excavator out.[66] Mr Stonhill went up to the yard and got some brand new 13mm link chain[67] which BAC had purchased in error.[68]
• [38] When Mr Pastrikos and Mr Zografakis arrived at the Caterpillar excavator, the chains were already attached to the Caterpillar excavator and the Hyundai excavator, and the tide was coming in quickly.[69] The deceased told Mr Pastrikos that Mr Stonhill had brought chain down, so Mr Pastrikos was aware that chain was about to be used, even though he did not see the chain get attached to the excavators.[70]
• [39] The deceased tried to pull the Caterpillar excavator out with the Hyundai excavator,[71] using some chain he already had and the chain provided by Mr Stonhill.[72]
• [40] The deceased was in the Hyundai excavator near the water's edge, the Caterpillar excavator was empty and Mr Pastrikos and Jeremy Leach were standing to the side.[73]
• [41] While Mr Pastrikos could not remember if the chain broke that day,[74] Mr Stonhill's evidence was that the chain snapped three or four times.[75] There was no dispute that the chain did snap three or four times on that day.
• [42] The Caterpillar excavator did not budge.[76]

Kalidonis' response to the deceased's conduct on 15 February

• [43] When Mr Pastrikos, Mr Zografakis and Jeremy Leach were in waist deep water, Mr Pastriskos told the deceased to 'stop' because, if the engine and hydraulics were not operating, the Caterpillar excavator would not 'skull drag'.[77] The deceased's response was: 'Why?'.[78] Mr Pastrikos said to the deceased: '[H]ow were we going to skull drag if you knew the tracks were still engaged?' and the deceased replied: 'I thought it would slide'.[79] Mr Pastrikos told the deceased to give it up and forget about it because the tide was coming in too quickly.[80] It was at that point that they called Mr Kalidonis, who came down.[81]
• [44] The Caterpillar excavator had been hired by Kalidonis and, although it was covered by Kalidonis' insurance, Mr Kalidonis was upset at the deceased and Jeremy Leach.[82] Mr Kalidonis fired Jeremy Leach on that day.[83]
• [45] Mr Kalidonis 'had some stern words' to the deceased but kept him on as a sub-contractor.[84] Mr Kalidonis told the deceased that Mr Kalidonis needed to 'authorise every single one of [the deceased's] activities' because ultimately Mr Kalidonis was responsible for any issues with the deceased's work and Mr Kalidonis told the deceased that he would terminate the deceased's sub-contract 'if this happened again'.[85]
• [46] Mr Kalidonis' evidence was that he was upset and angry that the deceased had done unauthorised works, using one of Kalidonis' employees, which had resulted in the Caterpillar excavator being 'lost to the tides'.[86]

Kalidonis' plan to get the Caterpillar excavator out

• [47] The deceased told Mr Kalidonis he would tow the Caterpillar excavator out with the Hyundai excavator, but Mr Kalidonis told the deceased he did not want to do that as the tides were no longer going to be low for another month.[87]
• [48] Mr Kalidonis, with Ms Kelly, began investigating options for how to get the Caterpillar excavator out.[88]
• [49] Mr Kalidonis and Ms Kelly discussed with Seaswift about the Caterpillar excavator being lifted from its location on the tidal flats directly onto the barge.[89] This option was dependent upon Seaswift's and AM Cranes' engineers and safety advisors being satisfied they would be able to park in the right location for AM Cranes to operate the crane from onboard the barge.[90] Seaswift sent a representative to Maningrida to see the Caterpillar excavator's location.[91] A representative from AM Cranes also went to Maningrida to inspect the site and see whether a crane could lift the excavator directly onto the barge or whether it should be lifted onto the land and then put on the barge.[92] Seaswift told Kalidonis that it would be a long process and an engineer would have to give advice about how to lift the excavator up because it was too heavy and could damage the barge.[93]
• [50] In the meantime, Mr Kalidonis decided to find 'another backup solution'.[94] Mr Kalidonis was simultaneously organising this second option to make sure there was a 'back up option'.[95] This second option was to acquire a custom made towing strap from Nobles to tow the Caterpillar excavator to shore and then get it picked up by Seaswift from the shore.[96]
• [51] At the beginning of March 2020, Mr Kalidonis discussed with Nobles the equipment needed 'for towing and lifting' the Caterpillar excavator, and Nobles advised that a 50 tonne strap would be needed to 'pull the excavator out'.[97]
• [52] At this stage, the Caterpillar excavator was some distance from 'dry land', which Mr Kalidonis estimated was 30 metres.[98] Duncan Bell (see below) and Callen Free (an employee of BAC) estimated the distance as about 100 metres.[99]
• [53] On 6 March 2020, Mr Kalidonis ordered a 70 tonne nylon recovery strap 60 metres long to make sure none of Kalidonis' other machinery needed to go onto the tidal flats.[100] Kalidonis paid just over $8,000 for the strap and around $7,000 to air freight the strap to Maningrida.[101] That 'towing assembly' was due to arrive in Maningrida on 13 or 14 March 2020.[102]
• [54] Ms Kelly's evidence was that Kalidonis would most likely use the recovery strap option because Sea Swift and AM Cranes were taking a comparatively long time to organise and finalise their method for recovery.[103] Ms Kelly's evidence was that, at no point, did anyone in Kalidonis ever mention the possibility of using chain to pull the Caterpillar excavator out, and the only options being considered were the two options referred to above.[104]
• [55] Kalidonis hired a mechanic, Douglas Bell, to attend at Maningrida and remove the hydraulic oil and the drive gears from the Caterpillar excavator 'so it could roll' when the 70 tonne recovery strap arrived.[105]

Kalidonis considered developing a SWMS for towing the Caterpillar excavator

• [56] On 9 March 2020, Mr Kalidonis told Ms Kelly that he and the deceased would need to have a phone discussion with Mr Pizanias so that Mr Pizanias could write a SWMS 'for towing of the' Caterpillar excavator.[106] Mr Kalidonis wanted to wait until the towing assembly had arrived before having that discussion, and wanted the deceased involved because he would be driving the towing excavator.[107] Mr Kalidonis identified 15 or 16 March 2020 as the planned date for towing the Caterpillar excavator with the recovery strap.[108]
• [57] Mr Pizanias was based in Darwin.[109] His role for the Maningrida project was 'safety representative' - 'not managing the safety of the site, but advising from Darwin' as 'a general health and safety manager'.[110] In this role, he prepared SWMS and safety documentation, specifically for (amongst other things) excavation and civil works.[111]
• [58] After the Caterpillar excavator got stuck in the water, Ms Kelly told Mr Pizanias that Kalidonis needed a SWMS to take it out.[112] Mr Pizanias had an issue with how they were going to do it and could not produce a SWMS because, although he knew they had ordered the 70 tonne recovery strap, he needed to know exactly what they were going to do, and that was still being worked out by Mr Pastrikos and Mr Kalidonis.[113] Mr Pizanias did not produce a SWMS for the recovery of the Caterpillar excavator.[114] It is not in dispute that no SWMS specifically for the recovery of the Caterpillar excavator was ever produced.

Did the Caterpillar excavator recovery plan involve towing?

• [59] The Local Court found that two alternatives for recovering the Caterpillar excavator were explored, the first being the use of a nylon recovery strap to tow the Caterpillar excavator out and a second option, which did not eventuate, of lifting the excavator by crane onto the barge or the landing.[115]
• [60] Kalidonis argued that no part of the system of work Kalidonis or the deceased were undertaking at the time of the alleged offending involved towing the Caterpillar excavator because the nylon recovery strap for towing the Caterpillar excavator was only ever a 'backup plan', and Kalidonis' primary plan was to use a crane to lift the Caterpillar excavator from the tidal flats onto the barge or the landing, or later, to use the Hyundai excavator to push the Caterpillar excavator from the ramp onto the barge. This was said to be an important factual matter because the charged offending related to the use of a dangerous 'towing system', as contrasted with a safe 'towing system', when in fact 'towing' was not part of the Caterpillar excavator recovery plan intended to be implemented by Kalidonis.
• [61] I do not accept that submission. On Ms Kelly's evidence, the use of the nylon recovery strap to tow the Caterpillar excavator off the tidal flats was the option most likely to be used given the delays involved in arranging the crane lift. This is confirmed by Mr Kalidonis' payment for the nylon recovery strap and its freight to Maningrida, in contrast with the crane option which went no further than investigation. Further, the deceased, who was Kalidonis' employee, did tow the Caterpillar excavator, and did so using chain, on 15 February 2020 as dealt with above, and on 11, 12 and 20 March 2020, as dealt with below. This issue is dealt with further below.

Deceased pushed the Caterpillar excavator on 11 March 2020

• [62] The deceased was on leave from 27 February to 10 March 2020, returning to Maningrida on 10 March 2020.[116]
• [63] On 11 March 2020, Mr Bell arrived in Maningrida at about 9.30am.[117] He worked on the Caterpillar excavator at low tide.[118]
• [64] When the deceased saw Mr Bell removing the drives from the Caterpillar excavator, he told Mr Kalidonis he would use the bucket of the other excavator to push the Caterpillar excavator out.[119] Mr Kalidonis told the deceased he was not allowed to touch the Caterpillar excavator, Kalidonis had already ordered the equipment needed to pull the excavator out, and that was the plan.[120]
• [65] After Mr Bell had finished working on the Caterpillar excavator, the deceased asked Mr Kalidonis if he could use the bucket of the Hyundai excavator to push the Caterpillar excavator 'a little bit' to see if it would roll on the tidal flats.[121] Mr Kalidonis agreed.[122]
• [66] The deceased attempted to push the Caterpillar excavator but it did not roll, so Kalidonis kept Mr Bell at Maningrida for another day to remove all the drive gears.[123]

Deceased attempted to tow the Caterpillar excavator on 11 March 2020

• [67] On 11 March 2020, the deceased tried to tow the Caterpillar excavator using a single chain.[124] Mr Bell did not know who put the chain on, but did recall that it was the deceased's idea to use the chain.[125]
• [68] The chain broke, flicking in the water and the bucket when it did so.[126] The Caterpillar excavator did not move at all.[127]
• [69] Present at the time were the deceased, Mr Bell, 'two Indigenous fellas' and Callam Free (who was an employee of BAC).[128] Given that the two 'fellas' wheelbarrowed the Caterpillar excavator parts back to the shore, and brought a second chain to the Caterpillar excavator,[129] I find that those two men were labourers employed by Kalidonis.

• [70] The complaint alleged that, on 12 March 2020, the deceased towed the Caterpillar excavator using 'the dangerous towing system' and that towing system failed multiple times, exposing the deceased to the risk of death or serious injury.[130] 'The dangerous towing system' was a towing system not designed to withstand the maximum pull force available from the pulling equipment which, when overloaded, failed and introduced a high shock load impact, without systems designed to minimise the likelihood of failure and the risk of death or serious injury to anyone within the vicinity.[131] Further, the complaint alleged that Kalidonis' failure to implement the reasonably practicable measures exposed the deceased to the risk of death or serious injury.[132]
• [71] As set out above, the 'dangerous towing system' did not fail multiple times on 12 March, but did so on 11 March 2020. Given that the date of the alleged offending is not a material particular of the charged offence, I take the complaint to refer, as the charged conduct, to the use of chain, which failed, to attempt to tow the Caterpillar excavator on 11 March 2020.
• [72] On the basis of the evidence referred to above, it was open to the Local Court to find, beyond reasonable doubt, that on 11 March 2020 Kalidonis' worker, the deceased, used chain to tow the Caterpillar excavator, exposing himself to the risk of death or serious injury.
• [73] It was the appellant's position that it was a reasonable possibility that Mr Kalidonis was not aware of the deceased's efforts to tow the Caterpillar excavator using chain on 15 February or 11 March 2020.
• [74] Mr Kalidonis' evidence did not refer to the deceased's attempts on 15 February or 11 March 2020. As to 15 February 2020, his evidence was that he was upset and angry that the deceased had done unauthorised works using one of Kalidonis' employees which had resulted in the Caterpillar excavator being 'lost to the tides'.[133] No reference was made in his evidence to 11 March 2020.
• [75] Up to that point in time, Mr Kalidonis had told the deceased that Mr Kalidonis had to authorise all of the deceased's actions, upon sanction of termination. The deceased had told Mr Kalidonis he would tow the Caterpillar excavator out, and Mr Kalidonis told him he did not want to do that given the tides. The deceased had told Mr Kalidonis he would push the Caterpillar excavator out, and Mr Kalidonis told him not to touch it because the plan was to tow it out with the recovery strap, which Mr Kalidonis had purchased and was on its way. The deceased then asked Mr Kalidonis if he could push the Caterpillar excavator a little bit, and Mr Kalidonis agreed.
• [76] Kalidonis argued that, given that Mr Kalidonis was not aware of the deceased's use of chains on 15 February 2020, the above steps by Mr Kalidonis were reasonably practicable measures taken by Kalidonis to ensure the safety of its workers, which satisfied its duty under s 19 of the WHS Act. The Local Court found those measures to be 'insufficient'.[134]
• [77] Mr Kalidonis was aware that the deceased was a worker who had to be directed, 'many times', 'to improve the way he did things so that his activities were in accordance with Kalidonis' rules, processes and SWMS.[135] While Mr Kalidonis was of the view that the deceased would 'always end up complying and doing it the way' Mr Kalidonis wanted, and did not see any 'major issues' or 'ongoing concerns' with the deceased's behaviour,[136] the deceased was clearly a worker at risk of not following directions, instructions and safety procedures. So much is confirmed by the deceased's failure to follow Mr Kalidonis' direction on 15 February 2020 not to excavate the shallow area where the Caterpillar excavator got stuck, a matter about which Mr Kalidonis was aware.
• [78] As set out above, a number of Kalidonis workers were present on 15 February 2020 in addition to the deceased, namely Jeremy Leach, Mr Sografakis and Mr Pastrikos. In particular, Mr Pastrikos was aware that the deceased had used chain to attempt to tow the Caterpillar excavator on 15 February 2020. Mr Pastrikos was Kalidonis' site manager, who was responsible, with Mr Kalidonis, for ensuring that workers complied with the SWMS applicable to the work they performed.
• [79] Even if it is accepted that Mr Kalidonis was not personally aware of what occurred on 15 February 2020, Kalidonis was aware of it, through Mr Pastrikos.
• [80] Despite that awareness, the following reasonably practicable measures were not taken:

(a) Mr Pastrikos did not report the deceased's highly dangerous conduct on 15 February 2020 to Mr Kalidonis or take any other steps in relation to it. It is a systemic failure in the workplace safety system for such conduct not to be identified, documented and reported to management so it can be dealt with.[137]

(b) No SWMS was prepared which expressly and specifically prohibited towing heavy machinery with chain, or that heavy machinery is only to be towed using appropriately designed and weighted towing equipment.[138]

(c) No unequivocal direction was given to all Kalidonis workers to abstain from towing or attempting to tow the Caterpillar excavator using chain and/or only with the use of a recovery strap.[139] Mr Kalidonis' direction to the deceased not to tow the Caterpillar excavator was not expressed in terms of risks to safety, but as being due to tides, and his direction not to touch the Caterpillar excavator because the plan was to tow it with the recovery strap was, again, not expressed in terms of risks to safety and was very shortly afterwards followed by permission to push it. These directions were not given to all Kalidonis workers and were not unequivocal or focussed on safety.

(c) No safety rules or procedures were prepared to make workers aware of the dangers of trying to tow the Caterpillar excavator with chain.[140]

(d) No written rules were prepared which clearly expressed the disciplinary consequences for workers if the safety rules or procedures were breached.[141]

(e) No toolbox meeting explained to workers the dangers posed by using chain to tow machinery, or prohibited attempts to tow the Caterpillar excavator until the recovery strap arrived.[142]

(f) The deceased was not disciplined for his attempt to tow the Caterpillar excavator with chain on 15 February 2020.[143]

(g) The worksite was not monitored and the deceased's actions with the Caterpillar excavator on 11 March 2020 were not supervised, with the consequence that his attempt to tow it on 11 March was not detected and stopped immediately.[144]

• [81] As the Local Court correctly held, Kalidonis' knowledge that the deceased had used chain to tow the Caterpillar excavator on 15 February 2020 'called for the clearest of instructions that this method was dangerous and unacceptable', and all workers should have been warned that there would be severe consequences, including termination, if it occurred again.[145]
• [82] For the above reasons, upon my consideration of the whole of the evidence leading up to and including 11 March 2020, it was open to the Local Court to be satisfied, beyond reasonable doubt, that Kalidonis was guilty on Count 1, and I am not satisfied that the Local Court must have entertained a doubt about Kalidonis' guilt on Count 1.

Deceased towed the Caterpillar excavator on 12 March 2020

• [83] On 12 March 2020, the deceased asked Mr Kalidonis if he could check again if the Caterpillar excavator could roll properly before Mr Bell left.[146] Mr Kalidonis told the deceased to push the Caterpillar excavator with the bucket of the Hyundai excavator, just as he had done on 11 March 2020.[147]
• [84] Mr Bell worked on the Caterpillar excavator until around 3.30pm.[148] The deceased then used the bucket of the Hyundai excavator to push the Caterpillar excavator and it moved a couple of metres.[149]
• [85] Mr Kalidonis was on the barge ramp watching the deceased use the bucket of the Hyundai excavator to push the Caterpillar excavator.[150]
• [86] At the deceased's request, Mr Bell hooked up a double chain to the bucket of the Hyundai excavator, which chain was already connected to the Caterpillar excavator on the tow point at the front.[151]
• [87] The deceased drove the Hyundai excavator backwards, towing the Caterpillar excavator with chain.[152] The deceased was trying to pull the Caterpillar excavator out for some time,[153] about half an hour in Mr Bell's estimation.[154]
• [88] People were 'watching everywhere'.[155] The deceased towed the Caterpillar excavator up to the beach next to the barge landing, above the high water mark.[156] This was met with loud cheering and joy from onlookers.[157]
• [89] Mr Kalidonis' evidence was that, on 12 March 2020, after he saw the deceased use the bucket of the Hyundai excavator to push the Caterpillar excavator, Mr Stonhill arrived at the barge ramp and they started chatting.[158] Mr Stonhill told Mr Kalidonis that the deceased had organised some chains from Mr Stonhill to pull the Caterpillar excavator out.[159] Mr Kalidonis told Mr Stonhill that Kalidonis had already organised the recovery strap and 'if [the deceased] does something without letting me know then his would be the last day he would work for me'.[160] Mr Kalidonis' evidence was that:[161]

[The deceased] was still on the tidal flats with the [Hyundai] excavator and I could see him only using the bucket so I wasn't concerned, didn't believe [Mr Stonhill's] comments and we kept chatting about other things. However, a little while later I looked up and to my shock, [the deceased] was pulling the excavator by using chains. I was very upset and I was waiting for him to get out from the water. As soon as he came in to the dry land, I went close to him and I said to him leave the excavator there on the beach and do not touch it again, and remove his chains off my job site.

I was very angry with [the deceased], too angry to talk to him at that point.

• [90] Ms Kelly's evidence was that the deceased's use of chain to tow the Caterpillar excavator on 12 March 2020 was 'a complete surprise' to her, 'against everything [Mr Kalidonis] had organised' and 'unauthorised and completely unplanned and not known by anyone else prior to him doing it'.[162]
• [91] It may be accepted that the deceased's use of chain to tow the Caterpillar excavator on 12 March 2020 was a surprise to Ms Kelly (who did not work at the worksite in Maningrida), was inconsistent with Kalidonis' plan to recover the Caterpillar excavator using the recovery strap when it arrived, and was not authorised or planned by Mr Kalidonis. Given Mr Bell's evidence, it cannot be accepted that the deceased's use of chain was not subjectively known by anyone else prior to him doing it. What was known or ought reasonably to have been known by Mr Kalidonis or Kalidonis is dealt with below.

Kalidonis' response to the deceased's conduct on 12 March 2020

• [92] Mr Bell's evidence was that Mr Kalidonis did not go down to the Caterpillar excavator on the tidal flats, but once the Caterpillar excavator was out and on the beach, Mr Kalidonis said: 'Thank you my friend'.[163]
• [93] By these words, Mr Bell's evidence is contrary to Mr Kalidonis' evidence about his emotional reaction to the deceased's conduct. It is reasonably possible that Mr Kalidonis' thanks were directed at Mr Bell rather than the deceased.
• [94] After the deceased towed the Caterpillar excavator up onto the beach, Mr Pastrikos 'had a go at' the deceased and said to him: '[Y]ou know we are not meant to do this' and the deceased said to him: '[I]t had to be out'.[164] Mr Pastrikos told the deceased it was 'an insurance claim'.[165] The deceased said to Mr Pastikos: '[W]e need to get it out of the water' and Mr Pastrikos said to him: '[N]o we shouldn't have touched it.'[166] There is no evidence to suggest that Mr Pastrikos said anything to the deceased about safety issues, or that Mr Pastrikos' comments to the deceased were founded on safety concerns. Rather, they were directed to the fact that the stranding of the Caterpillar excavator was subject to an insurance claim.
• [95] Mr Pastrikos took the chains from the Caterpillar excavator and put them 'behind the ute'.[167] He did not 'tag them out or remove them from service'.[168] He did not 'do any disciplinary action' or 'put anything out to any worker not to recover' the Caterpillar excavator, nor was it mentioned in any toolbox talks.[169]
• [96] After everyone left the work site that day, Mr Kalidonis spoke to the deceased and told him his casual employment contract and the remainder of his subcontract were terminated because he did not follow Kalidonis' rules.[170] At dinner that night, Mr Kalidonis told all the workers he was upset with the deceased and would be writing new rules 'and if anyone was going to disrespect [him] then they would need to leave'.[171] Later that night, the deceased begged for his job back and said he would follow Mr Kalidonis' instructions from now on.[172] The next day, Mr Kalidonis told the deceased he would give him one more chance.[173]
• [97] Over the next few days, Mr Kalidonis thought about a specific rule the workers could sign setting out a clear and easy method to terminate a worker.[174] A few days later he spoke to the workers about a '2 strikes and you are out rule', but they were upset and wanted specifics as to what constitutes a 'strike' and the appropriate consequences, and said that there would need to be an enterprise bargaining agreement.[175]
• [98] Mr Kalidonis thought further about what he could get the workers to sign to have immediate effect.[176] He had a clause added to the remote working and travel policy that said:

The person responsible for the breakdown of any type of machinery or equipment belonging to Kalidonis because of negligence and mishandling, is liable to fix those machineries or equipment at their own cost.[177]

• [99] On 18 March 2020, the new policy was presented to the workers after dinner.[178] Mr Kalidonis told all the workers how upset he was about the Caterpillar excavator getting towed out by the deceased, without any SWMS or authority, and that such actions put Kalidonis and its people at risk, with everyone needing to take personal responsibility.[179] Mr Kalidonis told the workers it was not just Kalidonis at risk, and not just other people's safety at risk, but individuals could go to jail as a result of their own personal irresponsible actions.[180] Mr Kalidonis mentioned that a piece of equipment had been damaged a couple of days prior due to a lack of care by the operator.[181]
• [100] The deceased did not accept the new policy, saying he was very experienced in handling machinery.[182] After much discussion, and an amendment to the new clause to add the words 'deliberate act', the workers all agreed to sign the amended policy.[183]
• [101] Ms Kelly's evidence about what Mr Kalidonis told her about being upset and angry about unauthorised use of plant or machinery, the amendments he made to the policy, and the meeting with the workers is generally consistent with Mr Kalidonis' evidence.[184]

Deceased pushed the Caterpillar excavator shortly before 20 March

• [102] Mr Kalidonis' evidence was that the deceased told Mr Kalidonis he wanted to push the Caterpillar excavator to the carpark so it would be closer to the barge when it arrived, and Mr Kalidonis gave him permission to do that.[185] Mr Kalidonis told the deceased to only push the Caterpillar excavator with the bucket and not use any chains, because that would be covered by the existing civil works SWMS 'with no additional risks identified'.[186]
• [103] Mr Pastrikos' evidence was that, after the deceased towed the Caterpillar excavator up onto the beach, it stayed that night on the beach.[187] In the morning, 'we said we are going to work out the right way on how we are going to do it'.[188] Mr Pastrikos said the deceased used the bucket of the Hyundai excavator to push the Caterpillar excavator up to the car park area, 'all the way up to the aged care area'.[189]
• [104] Sergeant Kim Chambers' evidence was that he saw mechanics working on the Caterpillar excavator and a day or two later saw it parked on the beach above the high tide mark.[190] During the following days, Sergeant Chambers observed that the Caterpillar excavator had been moved from the beach and re-positioned to an area 'near the entry to the barge landing'.[191]
• [105] Sergeant Chambers' observations are consistent with the evidence about the deceased towing the Caterpillar excavator out onto the beach, and then pushing the Caterpillar excavator from the beach to the car park area near the barge landing on 13 March 2020.

Kalidonis' plan for the Caterpillar excavator to be loaded on the barge

• [106] Ms Kelly's evidence was that, after the deceased pulled the Caterpillar excavator ashore on 12 March 2020, there was no need for any other towing, recovery or movement operations by Kalidonis, and it could simply remain on the shore until Seaswift picked it up.[192] She said that, on 12 March 2020, after being told by Mr Kalidonis that the deceased had towed the Caterpillar excavator ashore, she cancelled the charter plane she had booked to transport the nylon recovery strap to Maningrida and it was collected from the Darwin airport by Mr Pizanias and taken to the Darwin office as it was no longer required.[193]
• [107] Mr Kalidonis' evidence was that, on 16 March 2020, he made arrangements for the Caterpillar excavator to be transported back to Darwin on the barge by Seaswift.[194] He said Seaswift had an industrial forklift to push the Caterpillar excavator onto the barge.[195] Seaswift would inspect the situation first and review how to get the Caterpillar excavator onto the barge on 20 March 2020.
• [108] Ms Kelly's evidence was that she was aware that Seaswift had a rule that no one apart from their own staff were allowed to drive or move any materials or machinery onto or off their barge as they had their own procedures, licences, qualifications and safety management plans and their own 'roll on/roll off SWMS' for those activities.[196]
• [109] Mark Page, second mate with Seaswift, said Mr Kalidonis told him Kalidonis were going to push the Caterpillar excavator onto the barge with the Hyundai excavator.[197] Mr Page told Mr Kalidonis he would have a look at it when Seaswift got there and Mr Page would make the call whether it would be loaded onto the barge or not, depending on safety.[198] Mr Page said Kalidonis' plan was to get the Caterpillar excavator closer to the barge landing before Seaswift got there.[199] Seaswift were only going to be involved in putting the Caterpillar excavator onto the barge, and Kalidonis was going to get it down closer to the ramp,[200] down at the actual ramp itself.[201]
• [110] Mr Page said, if it was needed, Seaswift had a 20 tonne strap on the barge that could be attached to Seaswift's 32 tonne forklift with a heavy duty tow pin and a 35 tonne shackle, to assist in pulling the Caterpillar excavator onto the barge if needed.[202]
• [111] According to Mr Page, Mr Kalidonis told him that Kalidonis would push it on, but at that stage it was just talk and nothing had been prepared because it needed to be assessed.[203] He said that getting the Caterpillar excavator onto the barge was his responsibility, but getting it to the barge was Kalidonis' responsibility.[204]
• [112] Mr Page's evidence about the division of responsibility is consistent with Ms Kelly's evidence about Seaswift's rules about loading things onto their barge.
• [113] At around 7am on 20 March 2020, Mr Page phoned Mr Kalidonis to tell him Seaswift were about eight hours away and would arrive in Maningrida at around 5pm, and to have the Caterpillar excavator at the ramp as there was a limited tidal window to pick it up.[205]
• [114] It is clear from various evidence that, on 20 March 2020, when the deceased attempted to tow it with chain, the Caterpillar excavator was some significant distance from the roll on / roll off ramp at which the barge would arrive.[206] Mr Page estimated the distance to be about 50 metres.[207] Fiona Peters, NT WorkSafe officer, estimated the distance as approximately 100-130 metres.[208] Regardless of the actual distance, it was certainly not located at the ramp or very near to it - it was a significant distance away.
• [115] Consequently, it could not have been the case, as assumed by Ms Kelly, that Seaswift would pick the Caterpillar excavator up from where it was located. Rather, as contemplated by Mr Page, Kalidonis were going to have to move the Caterpillar excavator down from its then location much closer to the ramp where the barge would dock and Seaswift could load it.
• [116] On the basis of the above evidence, I find that, as between Mr Kalidonis and Mr Page, the plan for getting the Caterpillar excavator on the barge was that Seaswift were responsible for loading it from the roll on / roll off ramp onto the barge, and it was Mr Page's intention to use Seaswift's forklift to facilitate that, and Kalidonis was responsible for moving the Caterpillar excavator from its location some distance from the ramp to the ramp so that Seaswift could load it.
• [117] Mr Kalidonis' evidence was that, at the 'pre-start meeting' on 20 March 2020, there were no discussions about any Kalidonis worker touching the Caterpillar excavator 'because that was Seaswift's job to do'.[209]
• [118] To say that it was Seaswift's responsibility to move the Caterpillar excavator from its location on the morning of 20 March 2020 is inconsistent with all of the other evidence I have referred to above, particularly given the Caterpillar excavator's location. In the face of that other evidence, there is not a reasonable possibility that Mr Kalidonis believed, and it was Kalidonis' plan, that Seaswift would move the Caterpillar excavator down to the ramp, and no Kalidonis worker would be touching the Caterpillar excavator. In the face of that other evidence, I find beyond reasonable doubt that a Kalidonis worker was required to touch and move the Caterpillar excavator down closer to the ramp.
• [119] However, accepting Mr Kalidonis' evidence about his instructions to the deceased to push the Caterpillar excavator with the bucket, and not tow it, it is equally clear, and I am satisfied, that, by the afternoon of 20 March 2020, Kalidonis' plan to get the Caterpillar excavator closer to the barge ramp did not involve any Kalidonis worker towing it using chain.

Deceased towed the Caterpillar excavator on 20 March 2020

• [120] On 20 March 2020, Mr Kalidonis told the deceased to bring some other equipment to the carpark for loading onto the barge and to wait with that equipment to make sure Seaswift loaded it onto the barge. He told Mr Brian to work with the deceased that afternoon.[210]
• [121] Mr Brian said that, after around 2pm, he asked the deceased what was going to be done with the Caterpillar excavator and the deceased told him they were going to move it near the barge so the barge could come and pick it up at 5pm.[211] The deceased asked him to grab a 'slinger' (a u-shaped shackle), which he did.[212] He took the slinger to the deceased, who was on the Hyundai excavator.[213] The deceased told Mr Brian to 'tie it up', i.e., to use the slinger to tie some chain to the Hyundai excavator.[214] The chain was already attached to the Caterpillar excavator.[215] The deceased told Mr Brian to move back.[216] Mr Brian noticed that the chain was a bit loose and put his hand up to alert the deceased, but the chain snapped, flew back and hit the deceased in the head, causing a serious head injury.[217] The deceased had attempted to tow the Caterpillar excavator by pulling it with the Hyundai excavator using the chain Mr Brian attached with the slinger.[218]
• [122] Despite medical intervention, the deceased later died from the head injury.

• [123] The complaint alleges that, on 20 March 2020, the deceased towed the Caterpillar excavator using 'the dangerous towing system' (i.e. with chain) and that the towing system failed, resulting in the deceased's death.[219] Further, Kalidonis' failure to implement the reasonably practicable measures exposed the deceased to the risk of death or serious injury.[220]
• [124] On 20 March 2020, Kalidonis' worker, the deceased, with assistance from Kalidonis' worker, Mr Brian, towed the Caterpillar excavator with chain, which snapped, resulting in the deceased's death.
• [125] It was the appellant's position that:

(a) it was a reasonable possibility that Mr Kalidonis was not aware of the deceased's efforts to tow the Caterpillar excavator using chain on 15 February and 11 March 2020; and

(b) the deceased's towing of the Caterpillar excavator using chain on 20 March 2020 was unexpected, unauthorised and against specific instructions.

• [126] Mr Kalidonis' awareness of the deceased's efforts to tow the Caterpillar excavator using chain on 15 February and 11 March 2020 have been dealt with above. As set out there, I have found that the deceased was clearly a worker at risk of not following directions, instructions and safety procedures. This was again confirmed by the deceased's towing of the Caterpillar excavator using chain on 12 March 2020.
• [127] Mr Kalidonis was aware of the deceased's conduct on that day. On his evidence as set out above, Mr Kalidonis' response to the deceased towing the Caterpillar excavator with chain on 12 March 2020 was not immediate. He did not believe what he was told by Mr Stonhill about the deceased using chains to tow the Caterpillar excavator, and when he saw the deceased towing the Caterpillar excavator using chain, he waited for the deceased to 'get out from the water' and only approached him when he 'came in to the dry land'.
• [128] In other words, when Mr Kalidonis was informed about the deceased using chain to tow the Caterpillar excavator, he did not keep continuous watch of the deceased's actions with the excavators on 12 March 2020, and when Mr Kalidonis did see the deceased towing the Caterpillar excavator with chain on that day, he did not direct him to immediately cease, but permitted him to tow the Caterpillar excavator up onto the beach.
• [129] Mr Kalidonis' initial response was to tell the deceased to leave the Caterpillar excavator on the beach and remove his chains from the work site. He did not say anything to him at that stage about the risks to safety from the work he had just done. Later that day, he fired the deceased for not following Kalidonis' rules. The deceased begged for his job back, promising to follow instructions from then on. The next morning, Mr Kalidonis reinstated the deceased. Aside from being fired for less than 12 hours, no further disciplinary action was taken against the deceased for his conduct on 12 March 2020.
• [130] The deceased was required to, and did, sign a new policy, but that policy had nothing to do with towing excavators or even with compliance with safety requirements - it related to responsibility for the cost of machinery or equipment breakdowns due to deliberate acts, negligence or mishandling.
• [131] In addition to discussing the new policy, Mr Kalidonis spoke to the deceased and other Kalidonis workers on 18 March 2020 about the Caterpillar excavator being towed by the deceased without any SWMS or authority and how such actions put Kalidonis and its workers 'at risk', and told them that it was not just Kalidonis at risk, and not just other people's safety at risk, but that individuals could go to jail for their irresponsible actions. Mr Kalidonis expressed unhappiness with an instance of damage to equipment.
• [132] This conversation was not solely about towing the Caterpillar excavator with chains, or solely about safety matters, and was focussed to a significant degree on responsibility for machinery or equipment breakdowns. No clear and unequivocal direction was given to workers that the Caterpillar excavator was not to be towed with chain, or that anyone who did so would be fired.
• [133] Consistent with his past attitude, on 18 March 2020, the deceased was not receptive to the new policy and refused to sign it. Other workers had a similar attitude. The new policy was discussed for a couple of hours, with the conversation becoming quite heated, and the workers only agreed to sign the new policy when it was reworded to lessen its scope.
• [134] Mr Kalidonis' evidence was that this meeting on 18 March 2020 was with 'all' Kalidonis workers. Given Mr Brian's evidence referred to below about the Indigenous workers not being involved in the toolbox meetings every morning, and that he was not present at any meeting in which getting the Caterpillar excavator out was discussed, I consider it highly unlikely that Mr Brian and the other Indigenous workers were present at the meeting on 18 March 2020. Even if they were, the observations about what Mr Kalidonis said to the workers set out above remain.
• [135] Mr Kalidonis did explicitly tell the deceased on 20 March 2020 not to use chain to tow the Caterpillar excavator, and to only push it with the bucket of the Hyundai excavator. It follows that the deceased's conduct on 20 March 2020 was not authorised and was contrary to instructions. That, as the appellant accepted, did not relieve Kalidonis from its duty under s 19(1) of the WHS Act.
• [136] It does not follow that the deceased's conduct was unexpected, i.e., not reasonably foreseeable.
• [137] Even if it is accepted that Mr Kalidonis subjectively expected the deceased to follow his instructions on that day, given the matters referred to above about the deceased's known propensity for failing to comply with instructions, the lack of any substantive disciplinary action against him for failing to comply with instructions on 12 March 2020 or earlier, and the attention given in the meeting of 18 March 2020 and the new policy to machinery breakdowns, there was patently a relatively high risk that a worker, most likely the deceased' would not follow Mr Kalidonis' instructions on that day and would use chain to tow the Caterpillar excavator.[221] In other words, that risk was more than reasonably foreseeable.
• [138] Contributing to this risk were the somewhat conflicting messages which had been given to the deceased by Kalidonis in relation to moving the Caterpillar excavator, as referred to above. They were effectively:

(a) Do not worry about excavating the shallow area as it is not worth it.

(b) After the Caterpillar excavator got stuck: I must authorise all of your activities and if this happens again, you will be terminated.

(c) When attempting to tow with chain on 15 February 2020: How can it skull drag if the hydraulics and engine are engaged?

(d) After the deceased said he would tow it out: No, because the tides are not good.

(e) After the deceased said he would push it out: Do not touch it, the plan is to tow it with the recovery strap.

(f) After the deceased asked to push it a little bit: Yes.

(g) After the deceased asked if he could see if it would roll: Yes, but push it.

(h) After the deceased towed it out onto the beach with chains:

(i) Leave it on the beach and remove your chains from the worksite.

(iii) You're not fired, I will give you one more chance.

(i) After the deceased asked to move it closer to the ramp: Yes, but push it, do not tow it.

• [139] The reasonably practicable measures that were taken by Kalidonis (the ordering of the nylon recovery strap, the arrangements with Seaswift for the loading of the Caterpillar excavator onto the barge and the steps Mr Kalidonis took in response to the deceased's conduct up to and including 12 March 2020) were found by the Local Court to be 'insufficient'.[222]
• [140] For the reasons set out above, it was open to the Local Court to find, beyond reasonable doubt, that those measures did not alleviate the patently relatively high risk that the deceased would not follow Mr Kalidonis' instruction not to tow the Caterpillar excavator on 20 March 2020, with the accompanying high risk of death or serious injury to workers if he did not do so.
• [141] Despite that patently relatively high risk that the deceased would not follow Mr Kalidonis' instructions on that day, the following reasonably practicable measures were not taken.
• [142] First, no SWMS was produced which expressly and specifically prohibited towing heavy machinery using chain, or that heavy machinery is only to be towed using appropriately designed towing equipment, such as an appropriately weighted recovery strap.[223]
• [143] Secondly, there was no instruction or information given to Kalidonis workers, such as at a daily 'toolbox meeting', to explain the dangers and risks posed by using chain to tow heavy machinery.[224]
• [144] Thirdly, no unequivocal direction was given to all Kalidonis workers to abstain from towing or attempting to tow the Caterpillar excavator using chain or otherwise than with an appropriately weighted recovery strap.[225] Other than the directions given to the deceased directly, there was no evidence of any discussion, at a toolbox meeting or otherwise, at which Kalidonis workers were told unequivocally that the Caterpillar excavator was not to be towed using chain.
• [145] Indeed, Mr Brian's evidence was that he 'and the Indigenous boys' did not attend the daily 'toolbox meetings', which he thought were probably held 'at the lodge'.[226] He was not aware if a toolbox meeting was held on the morning of 20 March 2020.[227] He said he had not been to a toolbox meeting whilst working on the Maningrida project, and had simply been asked to sign a document that was 'for the tools meeting'.[228] He said they did not have meetings at which there were explanations about 'what's good, what's not good'.[229] Mr Brian's evidence was that he was not present at any meeting where there was discussion about how the Caterpillar excavator would be extracted.[230] He said he had, on one occasion, raised with Jeremy Leach the danger of using chain to tow the excavator, but Jeremy Leach had dismissed his concerns.[231] Given the timing of Jeremy Leach's dismissal, this must have been in relation to the towing of the Caterpillar excavator with chain on 15 February 2020.
• [146] On the basis of Mr Brian's evidence, I am satisfied that, while Mr Kalidonis gave the directions he did to the deceased, no such direction was given to Mr Brian, the Kalidonis worker who assisted the deceased with the chain on 20 March 2020.
• [147] Fourthly, no written rules were prepared which clearly expressed the disciplinary consequences for workers if the safety rules or procedures were breached.[232] The new policy signed by the deceased and other workers did not do so because it was directed to equipment and machinery breakdowns.
• [148] Fifthly, the deceased was not disciplined for his attempt to tow the Caterpillar excavator with chain on 12 March 2020.[233] To be fired and then reinstated only 12 hours later was not a disciplinary consequence sufficient to deter the deceased, or other workers, from such dangerous conduct.
• [149] Sixthly, the movement of the Caterpillar excavator was not monitored and the deceased's and Mr Brian's actions on 20 March 2020 were not supervised, with the consequence that the deceased's attempt to tow the Caterpillar excavator on that day was not detected and stopped immediately.[234]
• [150] The Local Court's observations set out at paragraph [82] above, applied with even greater force after Kalidonis was aware that the deceased used chain to tow the Caterpillar excavator on 12 March 2020.
• [151] For the above reasons, upon my consideration of the whole of the evidence leading up to and including 20 March 2020, it was open to the Local Court to be satisfied beyond reasonable doubt that Kalidonis was guilty on Count 2, and I am not satisfied that the Local Court must have entertained a doubt about Kalidonis' guilt on that Count.

• [152] Kalidonis criticised the following findings made by the Local Court on the bases that there was no or insufficient evidence to sustain them or they were contrary to the evidence:

(a) On 20 March 2020, the deceased obtained the chain that had been used by him to tow the Caterpillar excavator earlier, which was available and had not been 'tagged out'.[235]

(b) The same chains had snapped undertaking the same task of towing the excavator on 15 February and on 11 or 12 March 2020.[236]

(c) A reasonably practicable measure that could have been but was not taken was to put a tag on the chains so they could not be used or remove the chains from the site.[237]

• [153] The evidence about the source/s of the chain used by the deceased on 15 February, 11 March, 12 March and 20 March was either unclear or referred to various different sources.
• [154] It is open to read the Local Court's findings, by reference to the finding that chain not designed for towing heavy machinery can suddenly break,[238] as findings that the chain used on each occasion where the chain snapped was chain which was self-evidently 'not designed for towing heavy machinery'.
• [155] In any event, as the reasons set out above demonstrate, the Local Court's findings in relation to the source of the chain or Kalidonis' failure to tag it out or remove it from use were not necessary for satisfaction of guilt on both of the charged Counts.

Kalidonis' plan to recover the Caterpillar excavator did not involve towing

• [156] Kalidonis criticised the following findings made by the Local Court on the basis that they were contrary to the evidence:

(a) Around 8 March 2020, Kalidonis explored a second option for recovery of the Caterpillar excavator involving Seaswift using a crane to lift it onto the barge or the landing, which proposal did not eventuate.[239]

(b) There was no evidence to suggest that SWMS or rules were generated that stated that the Caterpillar excavator was only to be towed when the recovery strap arrived.[240]

(c) On 20 March 2020, the recovery strap had not yet arrived.[241]

(d) Reasonably practicable measures taken by Kalidonis for the safety of workers in recovering the Caterpillar excavator included purchasing the recovery strap which was strong enough to safely tow it and investigating means for other entities to conduct the salvage.[242]

(e) Not long after 15 February 2020, it would have been reasonably practicable at the next toolbox meeting to emphasise to workers that a recovery strap had been ordered and there were to be no attempts to move the Caterpillar excavator until the recovery strap arrived.[243]

(f) After the two attempts to tow the Caterpillar excavator with chain, it was reasonably practicable for Kalidonis to have locked or tagged out the Caterpillar excavator so all workers knew they were not to touch, operate or tow it.[244]

(g) Alternatively, Kalidonis could have provided an unequivocal direction to the deceased and other workers that they were not to attempt to tow the Caterpillar excavator until the recovery strap arrived.[245]

(h) Kalidonis could have ensured a risk assessment occurred before any towing of the Caterpillar excavator was performed, which would presumably have identified that towing with chain was too dangerous and a recovery strap was on its way.[246]

(i) Kalidonis did not provide the deceased and other workers with adequate training on towing.[247]

• [157] Firstly, as referred to above, I do not accept that the nylon recovery strap to safely tow the Caterpillar excavator was only ever the alternative option for its recovery, with the primary plan being for it to be lifted onto the barge from its location on the tidal flats by crane. On the bases that: (a) the Caterpillar excavator was 'stuck' some significant distance from 'dry land', i.e. the carpark area of the barge ramp area above the high water mark; (b) Mr Kalidonis had ordered and paid for the nylon recovery strap: (c) Mr Kalidonis and Ms Kelly had asked Mr Pizanias to write a SWMS for 'towing' the Caterpillar excavator; and (d) Mr Kalidonis told the deceased on 11 March 2020 that the plan was to tow it out with the strap, the clearly open inference is that Kalidonis' plan initially was to tow the Caterpillar excavator from its location on the tidal flats to 'dry land' using the nylon recovery strap, while the use of the crane was an initial option which was not pursued further because it would take too long.
• [158] Secondly, Mr Bell flew to Maningrida on 10 March 2020 to do mechanical work on the Caterpillar excavator so that it could roll when towed with the recovery strap. On 12 March 2020, Mr Kalidonis permitted the deceased to push the Caterpillar excavator to see if it would roll. This was obviously in furtherance of the purpose for Mr Bell's removal of the drive gears, namely to ensure it could roll when towed by the recovery strap on its arrival.
• [159] Consequently, the Local Court's findings above were consistent with the evidence and were relevant to the charged conduct relating entirely to Count 1, and partly to Count 2, because up to and including 12 March 2020, Kalidonis' recovery plan involved towing the Caterpillar excavator off the tidal flats with the recovery strap.
• [160] Thirdly, the Local Court found that, by 20 March 2020, Kalidonis' plan was for Seaswift to use its 30 tonne forklift to move the Caterpillar excavator onto a barge.[248] That is largely consistent with the evidence about the revised plan as referred to above. As set out there, I have accepted Mr Kalidonis' evidence that the deceased told him he wanted to push the Caterpillar excavator to the carpark so that it would be closer to the barge. This change of plan was obviously a consequence of the deceased having towed the Caterpillar excavator off the tidal flats and up onto dry land on 12 March 2020. As also set out above, the plan on 20 March 2020 was to move the Caterpillar excavator closer to the barge ramp so that it could be loaded onto the barge by Seaswift.
• [161] Fourthly, the Local Court's finding that the recovery strap had not arrived by 20 March 2020 was not erroneous and was made in the context of the deceased obtaining chain to tow the Caterpillar excavator on 20 March 2020. There is nothing in that.
• [162] Fifthly, to say that, by 20 March 2020, Kalidonis' plan for recovery of the Caterpillar excavator did not include towing it, is simply to repeat the submission, which I have accepted above, that the deceased's actions on 20 March 2020 were unauthorised and contrary to specific instructions. As set out above, it does not follow that they were unexpected or that the charged conduct was not properly found to be proven.
• [163] Finally, and most importantly, as the reasons set out above demonstrate, the Local Court's findings in relation to Kalidonis' failures to implement measures involving or specifically related to the nylon recovery strap were not necessary for satisfaction of guilt on both of the charged Counts.

Ground 1 - Failure to have regard to Mr Kalidonis' evidence

• [165] This ground asserts that the Local Court erred in its approach to and in making factual findings, leading to its findings that both offences were committed, in particular by failing to have regard to the unchallenged evidence of Mr Kalidonis and the criminal standard of proof.
• [166] Kalidonis argued that no attempt was made to exclude Mr Kalidonis' and Ms Kelly's 'account' as a reasonably possible account of the facts.
• [167] Essentially, this argument rested on Mr Kalidonis' evidence, supported by Ms Kelly's evidence, about his knowledge (or lack thereof) of the deceased's conduct, and his interactions with, and his responses and directions to, the deceased about the work he was authorised, and not authorised, to perform.
• [168] Further, Kalidonis argued that the Local Court had not considered 'the important issue of the provenance of' the chain used by the deceased on the various occasions. On the basis of Mr Kalidonis' 'unchallenged evidence', Kalidonis argued against the Local Court's assessment of the relatively high risk and very real and obvious risk that the deceased would tow the Caterpillar excavator with chain on 11 or 12 March 2020.
• [169] As set out above in relation to Ground 2, the factual findings I have made which ground the findings of guilt on both Counts are essentially consistent with those made by the Local Court, and they were founded essentially on Mr Kalidonis' evidence.
• [170] The effect of Mr Kalidonis' lack of knowledge about the deceased's conduct and his interactions with and responses and directions to the deceased about the work he was authorised and not authorise to perform have all been accepted, but did not give rise to a reasonable doubt about Kalidonis' guilt on either Count.
• [171] As set out above, the provenance of the chain used by the deceased on the various occasions was an unnecessary distraction because, whether the chain used was sourced from Kalidonis or elsewhere did not affect the findings about Kalidonis' guilt on either Count.
• [172] As I have already found, the Local Court's assessment of the risk that the deceased would use chain to tow the Caterpillar excavator was reasonably open and, in my view, entirely consistent with the evidence, including that of Mr Kalidonis.
• [173] Ground 1 is not made out.

Ground 3(a) - Local Court misapprehended Kalidonis' case

• [174] This ground asserts that the Local Court misapprehended the case put by Kalidonis as being that the deceased 'took risks that endangered himself and this was not the fault of' Kalidonis,[249] when actually Kalidonis' case was that the deceased acted on his own, without authority and contrary to express instructions.
• [175] Any difference between Kalidonis' case as summed up by the Local Court and what Kalidonis says its case actually was appears to turn on the difference between a denial of liability based on an employer 'disowning' the actions of its worker and a denial of liability based on an assessment of the reasonably practicable measures that were taken by Kalidonis in the context of the deceased's failure to follow instructions.
• [176] Kalidonis accepted as correct the Local Court's recitation of the law relating to the former proposition,[250] but argued that the Local Court failed to consider authorities it had cited regarding the act of an employee who 'goes off on a frolic of their own outside the scope of employment'. Kalidonis argued that the deceased's unauthorised conduct rendered ineffectual the reasonably practicable measures Kalidonis expected would be deployed and adhered to. This submission seems rather to miss the point given the patently relatively high risk that, notwithstanding those instructions, the deceased would attempt to tow the Caterpillar excavator with chain.
• [177] Kalidonis cited the case of Perry v Exactmix Pty Ltd,[251] in which the Magistrates Court of South Australia found that the alleged offence against the s 32 equivalent of the WHS Act was not proven beyond reasonable doubt. The dispute in that case was whether the prosecution had established its particularised case, which was that the employer had failed to provide and maintain, so far as reasonably practicable, plant in a safe condition by failing to install and maintain a rock breaker capable of clearing rock blockages by mechanical rather than manual means, and failed to implement and maintain a safe system of work that used mechanical means to clear rock blockages on the plant and did not require manual clearance of them. It was not in dispute that the rock breaker on the plant was inoperative, but all workers, including the worker who was injured, were aware of that, and were also aware that a mobile rock breaker could be called in.[252] All workers were also aware that using the mobile rock breaker was the accepted method of clearing a blockage.[253] The Court held that the crusher was not unsafe because of the inoperative rock breaker when all workers knew it was inoperative and that the expectation was to use the mobile rock breaker.[254] The Court also held that the alleged failure to implement and maintain a safe system of work that used mechanical means to clear rock blockages was not proven because it was not proven that there was a requirement on the part of the employer for its workers to manually clear blockages.[255] The Court held that the manual clearance of the blockage which led to the worker's injury was not part of the workers' training, was not a method approved by the employer and was contrary to the responsibilities of the supervisor.[256] The Court held that the employer at no time endorsed, encouraged, promoted or even suggested that blockages were to be overcome by manual means.[257] The complaint was dismissed.
• [178] Kalidonis also cited Hillman v Bridgestone Australia Ltd.[258] The Magistrates Court of South Australia found that the alleged offence against the s 32 equivalent of the WHS Act was not proven beyond reasonable doubt. The Court found that the employer's procedure for clearing a blocked conveyor, which required the conveyer to be stopped by activating a trip wire, was appropriate and would normally prevent the conveyor from restarting.[259] It was part of the induction and training of workers, it was documented, and all workers who gave evidence knew about it.[260] How the conveyor had restarted on the day of the injury after the tripwire was activated was not explained.[261] There was also a procedure for checking the trip wires every day, but the two workers who were tasked with following it did not do so, saying they were not taught or required by the employer to do so.[262] The Court found that those two workers did know from their training what that procedure was and its importance.[263] On the evidence before the Court, it was not satisfied that the employer had failed to develop and implement an adequate system for checking the trip wires.[264] The complaint was dismissed.
• [179] Neither of these cases refer to workers 'going off on a frolic of their own', their 'history of disobedience' or doing things 'outside the scope of their employment'. These cases are about employers with clearly documented safe workplace procedures, which were known by all workers as a consequence of their training, which procedures were not followed. In Perry, the allegations were that the plant was unsafe or the process the workers were required to follow was unsafe, and those allegations were found unproven, given the documented and known safe procedures. In Hillman, the allegations were that the workers had not been taught about or were not required to follow the safe procedures, and that was found unproven.
• [180] Neither case involved a worker with a known history of non-compliance with instructions, or any assessment of the risk that a worker would not comply with instructions or the safe work system, or whether the employer's expectation that the safe work system it had implemented would be complied with was, in those circumstances, reasonably held.
• [181] For those reasons, these two authorities offer little assistance in the present case.
• [182] I do not accept that the Local Court misapprehended Kalidonis' case or, if it did so, that any such misapprehension tainted its findings with error. The Local Court considered the allegations particularised in the complaint, and did so on the basis of its assessment of the risks to safety from towing an excavator with chain not designed for towing heavy machinery, the risk of a worker using chain to attempt to tow an excavator up to and after 12 March 2020, and the measures taken by Kalidonis to eliminate or mitigate those risks. These were all matters to be considered and addressed as part of determining the charges.
• [183] Ground 3(a) is not made out.

Ground 3(b) - Local Court failed to address the reasonably practicable measures taken by Kalidonis

• [184] This ground asserts that the Local Court failed to address itself to the reasonable steps taken by Kalidonis and instead expressly addressed itself to whether or not Kalidonis could have taken other steps.
• [185] Kalidonis argued that finding that measures taken by Kalidonis were 'insufficient'[265] was contrary to law because it invited an incorrect approach, namely of looking backwards by having regard to what actually happened (the injury or death and how it happened), rather than making a prospective assessment having regard to the circumstances as they existed at the relevant time.[266]
• [186] I do not accept that submission. The proper reading of the Local Court's reasons is that the Local Court found that Kalidonis' safe work system in place at the times of the charged offending was 'insufficient' to ensure, so far as reasonably practicable, the health and safety of workers. To find that a defendant's safe working system in place at the time was 'insufficient' to ensure, so far as reasonably practicable, the health and safety of workers is not 'looking backward', just as it is not 'looking backward' to find that an employer's safe working system in place at the time was appropriate.[267]
• [187] Kalidonis cited the decision of Baiada Poultry Pty Ltd v The Queen,[268] in which the plurality held that the words 'reasonably practicable' do not require an employer to take every possible step that could be taken. Further, the steps that are to be taken in performance of the duty are those that are reasonably practicable to achieve the identified end of providing and maintaining a safe working environment, so bare demonstration that a step could have been taken and, if taken, might have had some effect on safety does not, without more, demonstrate an employer has breached the duty. Kalidonis argued that the Local Court was satisfied of guilt by only a 'bare demonstration' that reasonably practicable measures could have been taken which might have had some effect on safety.
• [188] The 'bare demonstration' reasoning Kalidonis identified was the Local Court's findings that the following reasonably practicable measures could have been taken: (a) tagging of the chain used by the deceased on 12 March 2020; (b) removing that chain from the worksite; (c) disciplining the deceased for his conduct; and (d) addressing the workers at the next toolbox meeting that chain is not be used for towing.
• [189] The Local Court set out Mr Pastrikos' evidence about what he did or did not do after the deceased towed the Caterpillar excavator out with chain on 12 March 2020.[269] This was in the part of the Reasons in which the Local Court was finding the facts, including the facts about what Kalidonis did and did not do in response to the deceased's conduct. The Local Court came back to this evidence later, and found that the four things Mr Pastrikos identified as not being done were reasonably practicable steps Kalidonis could have taken to ensure the health and safety of workers.[270] These and other measures were then referred to.[271] The Local Court then went on to identify which of all the reasonably practicable measures identified by the Local Court were the subject of the particulars of the charged conduct and which of them had been found proven beyond reasonable doubt.[272]
• [190] Those pleaded reasonably practicable measures did not include tagging or removing the chain. They did include disciplining the deceased for his conduct, unequivocal directions to all workers not to tow the Caterpillar excavator and supervision of the deceased's activities.
• [191] The Local Court found that terminating the deceased's employment and reinstating him the next day was 'not reinforcement of the rule'.[273] The Local Court's speculative observations that 'perhaps' this led the deceased to think future breaches would be ignored or that it was acceptable to use chain, are simply in explanation of the clear finding that the termination followed by reinstatement was 'not reinforcement of the rule'.
• [192] The Local Court's process of reasoning to these ultimate conclusions about the particularised failures was not erroneous.
• [193] Ground 3(b) is not made out.

Ground 3(c) - Local Court erred in finding that there were reasonably practicable measures not taken by Kalidonis which would have prevented the risks to safety

• [194] This ground asserts that the Local Court erred in finding that the reasonably practicable measures it identified would have prevented exposure to the risk to safety.
• [195] The risks to safety found by the Local Court were risks of shock load impact from chain not designed for towing heavy machinery breaking when towing heavy machinery. The Caterpillar excavator was located, on 11 March 2020, on the tidal flats and, on 20 March 2020, a significant distance from the barge landing ramp. Kalidonis intended, at both those times, for it to be moved from its then location to another location. Kalidonis' employee, the deceased, had previously moved or attempted to move it by towing it using chain. Kalidonis was aware, through its employee Mr Pastrikos and, from 12 March 2020 through Mr Kalidonis, of the deceased's efforts to tow it using chain. The deceased's conduct gave rise to a relatively high degree of likelihood that Kalidonis' workers would use chain to attempt to tow the Caterpillar excavator to its desired locations. Mr Kalidonis had instructed the deceased not to tow the Caterpillar excavator until the recovery strap arrived, and, after firing then reinstating the deceased for towing it on 12 March 2020, had instructed the deceased not to tow it from its location on the barge landing down to the ramp.
• [196] The Local Court found that a reasonably practicable measure Kalidonis could have taken was to lock or tag out the Caterpillar excavator so all workers knew they could not 'touch, operate or tow' it.[274] Kalidonis argued, essentially, that this measure was not reasonably practicable when the Caterpillar excavator was, on Mr Kalidonis' instructions, to be pushed down to the barge ramp.
• [197] If the Caterpillar excavator had been 'tagged' with a 'tag' that clearly and prominently stated that towing it with chain was strictly prohibited, that would have clearly communicated to all workers, including the deceased and Mr Brian, that fact, thereby addressing the risk that a worker or workers would attempt to tow it with chain.
• [198] If that 'tagging' had been reinforced with communications to all workers about the dangers of towing heavy machinery with chain, with an unequivocal direction to all workers that the Caterpillar excavator was not to be towed, with a clear policy communicated to all workers that serious disciplinary consequences would immediately follow for any worker involved in towing it, and with appropriate monitoring and supervision of any movement of the Caterpillar excavator, all of which were found by the Local Court to be absent, those things would have substantially mitigated the identified risks.
• [199] Kalidonis argued that these measures would not have made any difference to the risks because the deceased had already ignored direct instructions on three prior occasions. That submission simply emphasises the considerable deficiencies in Kalidonis' responses to the deceased's conduct, which did nothing to deter him from continuing to engage in this highly risky conduct in the workplace, thereby endangering himself and other workers.
• [200] Kalidonis argued that the Local Court reversed the onus of proof when it observed that there were no contemporaneous documents to support Mr Kalidonis' evidence that he was upset about the safety risks of the deceased's conduct on 12 March 2020.[275]
• [201] The Local Court did not, by this observation, reverse the onus of proof. It simply observed that the new travel policy was the only document created by Kalidonis in response to the deceased's conduct on 12 March 2020, which document was 'a rule about who was liable for the costs', and said nothing about safety matters. That was simply an observation of fact - that after the deceased towed the Caterpillar excavator with chain on 12 March 2020 and previously, Kalidonis did not create any document at all which addressed the risks to the safety of workers from towing heavy machinery with chain not designed for that purpose. It was a matter worthy of comment.
• [202] Ground 3(c) is not made out.

• [203] By its appeal against the sentence imposed by the Local Court of a fine totalling $550,000, Kalidonis argued that the sentence is manifestly excessive.

• [204] The principles governing an appeal against sentence based on this ground are well known and have been expressed in similar terms in numerous cases. They were recently restated by the Court of Criminal Appeal in Mason v The King.[276] The principles are:

(a) The sentence is not to be disturbed on appeal unless error is shown.

(b) The presumption is that there is no error.

(c) Appellate intervention is not justified simply because the sentence is markedly different from sentences imposed in other cases.

(d) Intervention is warranted only where the difference is such that in all the circumstances the appellate court concludes there must have been some misapplication of principle, even though where and how is not apparent from the reasons.

(e) Manifest excess does not depend upon attribution of specific error. The relevant test is whether the sentence was unreasonable or plainly unjust.

(f) It must be shown that the sentence was clearly, and not just arguably, excessive.

(g) There is no one single correct sentence. There can be compliance with appropriate sentencing principles notwithstanding there may be differences of judicial opinion concerning the result.

(h) The relevant considerations in such an appeal are the maximum penalty for the offence; the place which the criminal conduct occupies in the scale of seriousness of offences of the type committed by the appellant; the standards of sentencing customarily imposed for the offence; and the personal circumstances of the offender.

• [205] The Courts have observed that sentencing Judges must be accorded a wide measure of latitude which will be respected by appellate courts and that 'judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies'.[277] The sentence will not be disturbed simply because it is stern or very stern or severe; it must be 'so egregiously erroneous that the sentencing Judge must have made a sentencing error, although that error cannot be identified'.[278] The 'sentence must be so far outside the range of a reasonable discretionary judgement as to itself bespeak error'.[279]
• [206] Comparison of the appellant's sentence with other sentences for similar offending will not be determinative of the appeal because of variation in the circumstances of the offending and of the offender, as well as the discretionary nature of the sentencing exercise, but a collation of appropriate sentences may provide a standard or yardstick, although not a fixed range departure from which will amount to demonstrable error.[280]

• [207] The Courts have identified the following relevant considerations in determining the penalty for an offence against s 32 of the WHS Act:[281]

(a) The penalty must be such as to compel attention to occupational health and safety generally, to ensure that workers whilst at work will not be exposed to risks to their health and safety.

(b) It is a significant aggravating factor that the risk of injury was foreseeable even if the precise cause or circumstances of exposure to the risk were not foreseeable.

(c) The offence may be further aggravated if the risk of injury is not only foreseeable but actually foreseen and an adequate response to that risk is not taken by the employer.[282]

(d) The gravity of the consequences of an accident does not of itself dictate the seriousness of the offence or the amount of the penalty. However, the occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety.[283]

(e) A systemic failure by an employer to appropriately address a known or foreseeable risk is likely to be viewed more seriously than a risk to which a worker was exposed because of a combination of inadvertence on the part of a worker and a momentary lapse of supervision.

(f) General deterrence and specific deterrence are particularly relevant factors in light of the objects and terms of the WHS Act.

(g) Employers are required to take all practicable precautions to ensure safety in the workplace. This implies constant vigilance. Employers must adopt an approach to safety which is proactive and not merely reactive. In view of the scope of those obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the employer in the future. This is particularly so where the employer conducts a large enterprise which involves inherent risks to safety.

(h) Regard should be had to the levels of maximum penalty set by the legislature as indicative of the seriousness of the breach under consideration.

(i) The neglect of simple, well-known precautions to deal with an evident and great risk of injury take a matter towards the worst-case category.

(j) The objective seriousness of the offence, without more, may call for the imposition of a very substantial penalty to vindicate the social and industrial policies of the legislation and its regime of penalties.

• [208] An offence against s 32 of the WHS Act is a 'Category 2 offence' for which the maximum penalty prescribed is, in the case of a body corporate, $1.5 million.

• [209] The circumstances of the offending have been set out above and need not be repeated.
• [210] Kalidonis argued that the fines imposed for each count are wholly disproportionate to its criminal and moral culpability. Reference was made to 'the uncontroverted cost [Kalidonis] had suffered as a consequence of the alleged offending, the previous excellent record of [Kalidonis], the loss of business suffered by [Kalidonis] but, most importantly, that [Kalidonis] had identified the relevant hazard, conducted a risk assessment and sourced and identified a safe mechanism by which the [Caterpillar] excavator should have been extracted', which was communicated to the deceased 'and all other staff members'.
• [211] The cost to Kalidonis of the allegations, its loss of business and its prior good character are separately considered below.
• [212] The Local Court expressly took into account, to Kalidonis' benefit, that Kalidonis had taken the reasonably practicable measures of ordering the nylon recovery strap, investigating lifting the Caterpillar excavator off the tidal flats with a crane, discussing the production of a SWMS for that process, orally reprimanding the deceased, and temporarily terminating his employment for towing the Caterpillar excavator on 12 March 2020.[284]
• [213] The Local Court also expressly took into account that the deceased acted contrary to Mr Kalidonis' instructions.[285] However, as the Local Court correctly recognised, that is not a matter which significantly mitigates Kalidonis' moral or criminal culpability when Kalidonis was aware of what the deceased had done and of his propensity to disobey directions, but did not take the identified reasonably practicable measures to address the risks to safety, including the risk that the deceased would again fail to comply with directions.[286]
• [214] Kalidonis' moral culpability for the offending is high, given: (a) the foreseeable high risk to workers' safety of towing the Caterpillar excavator with chain - that high risk is comprised of the magnitude of the potential harm to workers as demonstrated by the fact that doing so resulted in the deceased's death, and the high likelihood that chain would snap as demonstrated by the fact that chain used to attempt to tow the Caterpillar excavator had snapped on numerous prior occasions; (b) Kalidonis' knowledge about that risk (ie, the risk was actually foreseen by Kalidonis), and about the deceased's conduct prior to 11 March 2020 (relevant to Count 1) and up to 20 March 2020 (relevant to Count 2) and apparent propensity to disobey instructions; and (c) the reasonably practicable measures which the Local Court found had not been taken and which would have substantially mitigated the risk to workers' safety.

• [215] In the Local Court, Kalidonis made submissions about its personal circumstances as follows.
• [216] Kalidonis was formed in 2000 as a family company and became one of Darwin's most successful privately owned construction companies. Its clients included the Northern Territory Government, the Australian Defence Force, and other large and notable construction enterprises.
• [217] Mr Kalidonis is its sole director. He has worked in the construction business for 27 years, working all around Australia. He has owned multiple businesses in Darwin.
• [218] Over its 25 year operating history, Kalidonis has not had a prior workplace incident. The Local Court expressly took into account Kalidonis' lack of any prior convictions for such offending, and the character references it relied on.[287]
• [219] No information was provided about the size of Kalidonis' workforce, only a submission that there has been a downturn in its size since the incident and charges. Even so, it is apparent that Kalidonis conducted a reasonably large enterprise and did so in the construction industry, which involves inherent risks to safety. It is therefore necessary that the penalty encourage a sufficient level of diligence into the future.
• [220] A relevant consideration when imposing a fine is the financial circumstances of the offender and the nature of the burden that its payment will impose on the offender.[288] However, a court is not prevented from fining an offender only because it has not been informed about these matters.[289]
• [221] Kalidonis relied on evidence of its turnover for the financial years ending 2021 through to 2024.[290] Between 2021 and 2023, that turnover was between around $11.5 million and $14 million. In 2024, that turnover was around $3.6 million. As referred to below, Kalidonis submitted in the Local Court that the incident and the allegations against it had caused it to suffer detrimental financial consequences.
• [222] There are two difficulties with that submission. The first is that the evidence of turnover does not sustain the inference that the incident and the allegations were the cause of the significant downturn in turnover. Kalidonis' turnover before the incident is not known. The incident occurred on 20 March 2020. Kalidonis' turnover in the 2021 financial year (presumably the year from 1 July 2020 to 30 June 2021) was around $13.8 million. The complaint was laid on 11 March 2022. Kalidonis' turnover in the 2022 financial year was around $11.5 million and in the 2023 financial year was around $14 million. Kalidonis' turnover in the 2024 financial year was around $3.6 million. It was convicted in August 2024 and sentenced in January 2025. The apparent downturn in turnover does not align with either the incident, the laying of the allegations or the conviction.
• [223] The second difficulty is that neither the evidence nor the submissions made identify with any real precision the financial situation of Kalidonis as at the date of sentencing, specifically, its capacity to pay a fine and the nature of the burden that any fine would impose on Kalidonis. There was no information, for example, about profit.

• [224] Kalidonis argued that, since the incident and the allegations made against it, Kalidonis has suffered adverse publicity which has impacted its ability to obtain new construction contracts; substantial increases in its workers' compensation insurance premiums; withdrawal of financial support from banks and finance companies leading to a need to refinance debt at substantially higher interest rates; a refusal by government authorities to continue with ongoing contracts pending resolution of the proceedings; and consequent financial pressures which have required it to lay off staff. Reference was also made to financial and emotional impacts on Mr Kalidonis personally, including on his relationships with his wife and children.
• [225] The only evidence put by Kalidonis in support of the above submissions related to workers' compensation insurance premiums and turnover, the latter of which has been addressed above.[291]
• [226] It is a general sentencing principle that a sentencing court may take into account the indirect consequences of a conviction or other extra-curial punishment, being some serious loss or detriment the offender has suffered as a result of having committed the offence,[292] because the sentencing court is required to ensure that the punishment the offender receives is what in all the circumstances is appropriate and not excessive. However, the general view is that adverse indirect consequences of conviction are the natural consequences of the crime committed, although the authorities present no clear pattern.[293]
• [227] There is evidence that, after the incident, Kalidonis' workers' compensation insurance premiums increased from around $28,000 per annum to around $150,000 per annum and then decreased to around $125,000 per annum.[294] An increase in workers' compensation insurance premiums following a workplace accident in which a worker died are clearly the natural consequences of an offence against workplace health and safety laws related to that death. No authority was cited by Kalidonis in which this consequence was taken into account so as to mitigate the sentence imposed.
• [228] As for the other adverse consequences Kalidonis referred to, there was no evidence about those (save the downturn in turnover referred to above), only submissions. As the authors of a well-regarded text on sentencing warn:

A defendant claiming that an adverse consequence will result [or has resulted] from the conviction or finding of guilt must be prepared to prove it. Sentencers will be unimpressed by unsupported assertions.

• [229] In any event, the Local Court expressly took into account the adverse financial consequences to Kalidonis of financing and insurance premiums, and the other secondary consequences from the incident, the prosecution and the proceeding.[295]

• [230] Kalidonis relied on evidence of the following matters:

(a) employment of several different health and safety managers or supervisors between the years 2021 to 2025, which cost it $782,453.10;[296]

(b) engagement of an entity to undertake safety audits, which cost it $30,187;[297]

(c) engagement of an entity to undertake health and safety training of workers, which cost it $39,763.56;[298]

(d) engagement of an entity to perform 'tasks relating to company operations such as looking after SWMS building and advice on safety', which cost it $38,478.24;[299]

(e) engagement of an entity to perform various tasks including 'looking after programs for safety and management of safety', with those tasks costing around $22,700;[300]

(f) implementation of a program designed to check that all workers' licences to operate machinery are up to date and all vehicles are registered, which cost it $27,922.28;[301]

(g) implementation of a program designed for the construction of SWMS, which cost it $30,000;[302] and

(h) attained certification of compliance with the requirements of Occupational Health and Safety Management Systems ISO 45001:2018, which is the highest accreditation that can be achieved.[303]

• [231] This evidence goes to the remorse of Kalidonis for the incident and the consequences of its offending on the deceased and his family and its prospects of rehabilitation in the sense of the risk of further offending in the future.
• [232] The Local Court expressly took into account Kalidonis' 'considerable understanding and regret as to the cost of these circumstances' and assumed that Kalidonis 'has learned a lesson already'.[304] The above evidence confirms that position.

• [233] The matters referred to at paragraph [214] above, and the fact that the reasonably practicable measures identified in paragraphs [196]-[198] above were readily available and not expensive or difficult to implement, demonstrate that this offending was not 'merely technical breaches' as Kalidonis submitted. Equally, as the Local Court expressly found, the offending was not at the higher end of the range of seri[305]ness as the WHA had submitted.305
• [234] I consider that the offending falls below (for Count 1) and around (for Count 2) the mid-range of seriousness for such offences, with the difference being accounted for by the fact that Count 2 was the second instance of the conduct with knowledge of the first instance.

• [235] In the Local Court, the WHA relied on a schedule of six sentences imposed in cases involving a breach by a body corporate of s 32 of the WHS Act or its counterpart in other jurisdictions which led to the death of a person. The penalties imposed were fines of $120,000 (with no discount for a guilty plea),[306] $375,000 (with no discount for a guilty plea),[307] $425,000 (with a discount for a plea),[308] $487,500 (with a discount for a plea),[309] $960,000 (with a discount for a plea),[310] and $1 million (with a discount for a plea).[311]
• [236] Acknowledging the limitations of referring to sentences in other cases, these sentences indicate that the sentences imposed on Kalidonis were well within the yardstick indicated by the fines imposed in those cases.

• [237] In all of the circumstances of this case, the imposition of a fine of $400,000 in respect of Count 1 and a fine of $550,000 in respect of Count 2, and a total fine of $550,000 in respect of both counts, was not manifestly excessive.
• [238] The appeal against sentence is not made out.

• [239] None of the grounds of appeal against conviction have been made out.
• [240] Nor has the appeal against sentence been made out.

• [241] The appeal is dismissed.
• [242] I will hear the parties as to costs.

[1] Work Health Authority v Kalidonis NT Pty Ltd [2024] NTLC 4, dated 23 August 2024 ('Reasons').

[2] Transcript, 18 February 2025, p 5.

[3] See Pikos v O'Neill [2024] NTSC 6 at [12]- [14] per Barr J and the authorities there cited. See also NS v Dunne [2021] NTSC 77 at [8]- [9] per Brownhill J.

[4] Complaint, [9], [10]: Appeal Book ('AB') V1, p 7.

[5] Complaint, [11]: Appeal Book ('AB') Volume ('V') 1, p 7.

[6] Complaint, [12], [13]: Appeal Book ('AB') V1, p 8.

[7] Complaint, [14]: Appeal Book ('AB') V1, p 8.

[8] Complaint, [17]: Appeal Book ('AB') V1, p 8.

[9] Complaint, [16]: Appeal Book ('AB') V1, p 8.

[10] Complaint, [18(a)(i)]: Appeal Book ('AB') V1, p 9.

[11] Complaint, [18(a)(ii)]: Appeal Book ('AB') V1, p 9.

[12] Complaint, [18(a)(iii)]: Appeal Book ('AB') V1, p 9.

[13] Complaint, [18(a)(iv)]: Appeal Book ('AB') V1, p 9.

[14] Complaint, [18(a)(v)]: Appeal Book ('AB') V1, p 9.

[15] Complaint, [18(b)]: Appeal Book ('AB') V1, p 9.

[16] Complaint, [18(c)]: Appeal Book ('AB') V1, p 9.

[17] Complaint, [18(d)]: Appeal Book ('AB') V1, p 9.

[18] Complaint, [18(e)]: Appeal Book ('AB') V1, p 9.

[19] Complaint, [18(f)]: Appeal Book ('AB') V1, p 9.

[20] Complaint, [18(g)]: Appeal Book ('AB') V1, p 10.

[21] Complaint, [18(h)]: Appeal Book ('AB') V1, p 10.

[22] Complaint, [19]-[24]: Appeal Book ('AB') V1, p 10.

[23] Complaint, [25]-[31]: Appeal Book ('AB') V1, pp 10-11.

[24] See Filippou v The Queen [2015] HCA 29; (2015) 256 CLR 47 at [83] per Gageler J.

[29] Statutory Declaration of Theofilos Kalidonis made on 20 March 2020 ('Kalidonis Statement'), [11]: AB V2, p 7.

[30] Kalidonis Statement, [9]: AB V2, p 7.

[32] Kalidonis Statement, [8]: AB V2, p 6.

[33] Kalidonis Statement, [8]: AB V2, p 6; Statutory Declaration of Cosmus Pastrikos made on 1 May 2020 ('Pastrikos Statement'), [4], [8]-[11]: AB V2, p 290.

[34] Kalidonis Statement, [20]: AB V2, p 8.

[35] Kalidonis Statement, [23]: AB V2, p 9; Statutory Declaration of Jacinta Kelly made on 30 April 2020 ('Kelly Statement'), [6]: AB V2, p 155.

[36] Kalidonis Statement, [32]: AB V2, p 10; Statutory Declaration of Nikolaos Pizanias made on 14 May 2020 ('Pizanias Statement'), [1], [7]: AB V2: AB V2, p 284.

[37] Kalidonis Statement, [49]: AB V2, p 13; Recorded Statement of Milan Thapa made on 21 March 2020 ('Thapa Statement'): AB V2, p 710.

[38] Kalidonis Statement, [14]: AB V2, p 7.

[39] Kalidonis Statement, [20]: AB V2, p 8.

[40] Kalidonis Statement, [8], [50]: AB V2, pp 6, 13; Recorded Statement of Ross Brian made on 21 March 2020 ('Brian Statement'): AB V2, p 359.

[41] Pizanias Statement, [44]: AB V2, p 294.

[44] Director of Public Prosecutions (Vic) Reference No 1 of 1996 [1998] 3 VR 352 at 517 per Callaway JA (Phillips CJ and Tadgell JA agreeing), citing Meridian Global Fund Management Asia v Securities Commission [1995] 2 AC 500. See also Anderson v Canaccord Genuity Financial Ltd [2023] NSWCA 294 at [249] per Gleeson, Leeming and White JJA; Commonwealth Bank of Australia v Kojic [2016] FCAFC 186; (2016) 249 FCR 421 at [62]- [63] per Allsop CJ, [97]-[99] per Edelman J (Besanko J agreeing).

[45] QBE Underwriting Ltd v Southern Colliery Maintenance Pty Ltd [2018] NSWCA 55; (2018) 97 NSWLR 459 at [95] per Leeming JA (Macfarlan and Payne JJA agreeing).

[46] Section 43BM of the Criminal Code addresses intention, knowledge or recklessness if it is a fault element in relation to a physical element of an offence. It does not apply to intention, knowledge or recklessness as an intermediate fact.

[47] See the authorities cited at footnote 44 above.

[49] R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; (2006) 14 VR 321 at [23] per Maxwell P, Buchanan and Redlich JJA.

[52] R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; (2006) 14 VR 321 at [23] per Maxwell P, Buchanan and Redlich JJA.

[56] Kalidonis Statement, [17]: AB V2, p 7.

[60] Statutory Declaration of Cosmus Pastrikos made on 1 May 2020 ('Pastrikos Statement'), [18]: AB V2, p 291.

[61] Pastrikos Statement, [6]-[7]: AB V2, p 290; Reasons at [42].

[62] Pastrikos Statement, [42]-[45]: AB V2, p 291.

[63] Pastrikos Statement, [18]: AB V2, p 291.

[64] Recorded Interview of Georgios Zografakis on 21 March 2020, p 21: AB V2, p 551.

[65] Statutory Declaration of Timothy Bruce Stonhill made on 24 June 2020 ('Stonhill Statement'), [6], AB V2, p 304.

[68] Stonhill Statement, [7], AB V2, pp 304-305.

[69] Pastrikos Statement, [23]-[24]: AB V2, p 292.

[70] Pastrikos Statement, [23]: AB V2, p 292.

[71] Stonhill Statement, [7], AB V2, p 305, particularly the reference to 'chassis to bucket'. It is not in dispute that the Hyundai excavator was used to try and pull the Caterpillar excavator out.

[72] Reasons at [26]-[27]; Pastrikos Statement, [35]: AB V2, p 292.

[73] Pastrikos Statement, [29]-[30]: AB V2, p 293.

[74] Pastrikos Statement, [32]: AB V2, p 293.

[76] Pastrikos Statement, [23]: AB V2, p 292.

[77] Pastrikos Statement, [27]: AB V2, p 292.

[78] Pastrikos Statement, [27]: AB V2, p 292.

[79] Pastrikos Statement, [33]: AB V2, p 293.

[80] Pastrikos Statement, [30]: AB V2, p 293.

[81] Pastrikos Statement, [28]: AB V2, p 292.

[86] Kalidonis Statement, [20]-[21]: AB V2, p 8.

[87] Kalidonis Statement, [23]: AB V2, pp 8-9; Reasons at [28].

[88] Kalidonis Statement, [22]-[23]: AB V2, pp 8-9; Response by Jacinta Kelly to Notice to Give Information made on 27 May 2022 ('2nd Kelly Statement'): AB V2, p 269.

[89] Kalidonis Statement, [24]: AB V2, p 9; 2nd Kelly Statement: AB, V2, pp 269, 270; Reasons at [33].

[90] 2nd Kelly Statement: AB V2, pp 269, 270.

[91] Kalidonis Statement, [24]: AB V2, p 9; 2nd Kelly Statement: AB, V2 pp 269-270; Reasons at [33].

[92] Kalidonis Statement, [24]: AB V2, p 9.

[93] Kalidonis Statement, [25]: AB V2, p 9.

[94] Kalidonis Statement, [25]: AB V2, p 9.

[95] 2nd Kelly Statement: AB, V2, p 270.

[96] 2nd Kelly Statement: AB V2, pp 270, 273; Reasons at [33].

[97] Kalidonis Statement, [26]: AB V2, p 9.

[98] Kalidonis Statement, [27]: AB V2, p 9.

[99] Statutory Declaration of Douglas Bell made on 21 April 2020 ('Bell Statement'), [18]: AB V2, p 314; Statutory Declaration of Callen Free made on 24 April 2020, [8]: AB V2, p 319.

[100] Kalidonis Statement, [27]: AB V2, p 9; Reasons at [31]-[32].

[101] Kalidonis Statement, [27]: AB V2, p 9; 2nd Kelly Statement: AB V2, pp 270, 273.

[102] Kalidonis Statement, [28]: AB V2, p 9; 2nd Kelly Statement: AB V2, pp 270, 273.

[103] 2nd Kelly Statement: AB V2, p 270.

[104] 2nd Kelly Statement: AB, V2, p 271.

[105] Kalidonis Statement, [29]: AB V2, pp 9-10; Reasons at [34].

[106] Kalidonis Statement, [32]: AB V2, p 10; 2nd Kelly Statement: AB V2, p 270.

[107] Kalidonis Statement, [32]: AB V2, p 10; 2nd Kelly Statement: AB V2, p 270.

[108] 2nd Kelly Statement: AB V2, p 271.

[109] Pizanias Statement, [6]: AB V2, p 284.

[110] Pizanias Statement, [7]: AB V2, p 284.

[111] Pizanias Statement, [6]-[7], [11]: AB V2, pp 284-285; 2nd Kelly Statement: AB V2, p 271.

[112] Pizanias Statement, [21]: AB V2, p 286.

[113] Pizanias Statement, [21]: AB V2, p 286; Statutory Declaration of Nikolaos Pizanias made on 19 May 2020 ('2nd Pizanias Statement'), [4]: AB V2, p 288.

[114] Transcript, 16 April 2024: AB V1, pp 50, 52.

[116] Kalidonis Statement, [32]: AB V2, p 10.

[117] Bell Statement, [6]: AB V2, p 312.

[118] Kalidonis Statement, [31]: AB V2, p 10; Bell Statement, [9]-[17].

[119] Kalidonis Statement, [30]: AB V2, p 10.

[120] Kalidonis Statement, [30]: AB V2, p 10.

[121] Kalidonis Statement, [31]: AB V2, p 10.

[122] Kalidonis Statement, [31]: AB V2, p 10.

[123] Kalidonis Statement, [31]: AB V2, p 10. The Local Court found the deceased managed to push the Caterpillar excavator a couple of metres: Reasons at [34]. However, the evidence shows that this is what occurred the following day (see below).

[124] Bell Statement, [18]-[21]: AB V2, p 314.

[125] Bell Statement, [18]-[21]: AB V2, p 314.

[126] Bell Statement, [18]-[21]: AB V2, p 314; Reasons at [35].

[127] Bell Statement, [26]: AB V2, p 314; Reasons at [35].

[128] Bell Statement, [18]: AB V2, p 314.

[129] Bell Statement, [21], [23], [25]: AB V2, p 314.

[130] Complaint, [23]: AB V1, p 10.

[131] Complaint, [16]: AB V1, p 8.

[132] Complaint, [24]: AB V1, p 10.

[133] Kalidonis Statement, [20]-[21]: AB V2, p 8.

[134] Reasons at [68]. This finding is the subject of Ground 3, which I will come to.

[135] Kalidonis Statement, [15]: AB V2, p 7.

[136] Kalidonis Statement, [16]: AB V2, p 7.

[137] This falls within the particularised reasonably practicable measure pleaded in the Complaint, [18(c)].

[138] Reasons at [66]. This falls within the particularised reasonably practicable measure pleaded in the Complaint, [18(c)].

[139] Reasons at [74]. This falls within the particularised reasonably practicable measure pleaded in the Complaint, [18(a)(ii)].

[140] Reasons at [67]. This falls within the particularised reasonably practicable measure pleaded in the Complaint, [18(c)].

[141] Reasons at [67]. This falls within the particularised reasonably practicable measure pleaded in the Complaint, [18(a)(v)].

[142] Reasons at [70]. This falls within the particularised reasonably practicable measure pleaded in the Complaint, [18(a)(v), (c) (f)].

[143] Reasons at [69]. This falls within the particularised reasonably practicable measure pleaded in the Complaint, [18(a)(v), (h)].

[144] This falls within the particularised reasonably practicable measure pleaded in the Complaint, [18(f), (g)].

[146] Kalidonis Statement, [33]: AB V2, p 10.

[147] Kalidonis Statement, [33]: AB V2, p 10.

[148] Bell Statement, [18]-[21]: AB V2, p 314.

[149] Pastrikos Statement, [49]: AB V2, p 295. Mr Pastrikos described this as happening on the 'third day' Mr Bell was there. This is also how he described the day the deceased moved the Caterpillar excavator above the water line. There was no dispute that this pushing occurred on 12 March 2020, although the Local Court appears to have found that it occurred on 11 March 2020: Reasons at [34].

[150] Kalidonis Statement, [33]: AB V2, p 10; Reasons at [37].

[151] Bell Statement, [22]: AB V2, p 314.

[152] Bell Statement, [24]: AB, V2 p 314; Stonhill Statement, [12]-[14]: AB V2, p 305.

[153] Stonhill Statement, [15]: AB V2, p 305. This paragraph says 'It' sat on the beach for some time, but I take that to be a typographical error which should say 'I' sat on the beach for some time and watched the excavator being pulled ashore.

[154] Bell Statement, [25]: AB V2, p 314.

[155] Bell Statement, [25]: AB V2, p 314.

[156] Bell Statement, [31]-[32]: AB V2, p 315; Pastrikos Statement, [51]: AB V2, p 295; Reasons at [41].

[157] Pastrikos Statement, [51]: AB V2, p 295; Reasons at [41].

[158] Kalidonis Statement, [34]: AB V2, p 10.

[159] Kalidonis Statement, [34]: AB V2, p 10.

[160] Kalidonis Statement, [34]: AB V2, p 10; Reasons at [44].

[161] Kalidonis Statement, [35]-[36]: AB, V2, p 11; Reasons at [44].

[162] 2nd Kelly Statement: AB V2, pp 271, 272.

[163] Bell Statement, [32]: AB V2, p 315.

[164] Pastrikos Statement, [52]: AB V2, p 296; Reasons at [41].

[165] Pastrikos Statement, [52]: AB V2, p 296.

[166] Pastrikos Statement, [54]: AB V2, p 296.

[167] Pastrikos Statement, [55]: AB V2, p 296: Reasons at [41].

[168] Pastrikos Statement, [55]: AB V2, p 296: Reasons at [41].

[169] Pastrikos Statement, [58]: AB V2, p 296; Reasons at [41].

[170] Kalidonis Statement, [36]-[37]: AB V2, p 11; Reasons at [45].

[171] Kalidonis Statement, [38]: AB V2, p 11; Reasons at [46].

[172] Kalidonis Statement, [39]: AB V2, p 11.

[173] Kalidonis Statement, [40]: AB V2, p 11; Reasons at [45].

[174] Kalidonis Statement, [41]: AB V2, pp 11-12.

[175] Kalidonis Statement, [42]: AB V2, p 12.

[176] Kalidonis Statement, [43]: AB V2, p 12.

[177] Kalidonis Statement, [44]: AB V2, p 12; Reasons at [47], [50].

[178] Kalidonis Statement, [45]: AB V2, p 12; Reasons at [49].

[179] Kalidonis Statement, [45]: AB V2, p 12.

[180] Kalidonis Statement, [46]: AB V2, p 12.

[181] Kalidonis Statement, [46]: AB V2, p 12.

[182] Kalidonis Statement, [47]: AB V2, pp 12-13.

[183] Kalidonis Statement, [47]: AB V2, p 13.

[184] 2nd Kelly Statement: AB V2, pp 271-272.

[185] Kalidonis Statement, [48]: AB V2, p 12; Reasons at [53].

[186] Kalidonis Statement, [48]: AB V2, p 13.

[187] Pastrikos Statement, [59]: AB V2, p 296.

[188] Pastrikos Statement, [59]: AB V2, p 296.

[189] Pastrikos Statement, [60]: AB V2, p 296.

[190] Statutory Declaration of Kim Chambers made on 24 March 2020 ('Chambers Statement'), [12]: AB V2, p 1141.

[191] Chambers Statement, [12]: AB V2, p 1141.

[192] Chambers Statement, [13]: AB V2, p 272.

[193] 2nd Kelly Statement: AB V2, pp 271-272, 273.

[194] Kalidonis Statement, [48]: AB V2, p 13; Reasons at [52].

[195] Kalidonis Statement, [48]: AB V2, p 13. See also Witness Statement of Theophilis Kalidonis made on 22 March 2020: AB V2, p 151.

[196] 2nd Kelly Statement: AB V2, p 272.

[197] Statutory Declaration of Mark Page made on 1 May 2020 ('Page Statement'), [3]: AB V2, p 307.

[198] Page Statement, [3]: AB V2, p 307.

[199] Page Statement, [3]: AB V2, p 307.

[200] Page Statement, [4]: AB V2, p 307.

[202] Page Statement, [5], [7]: AB V2, pp 307-308.

[203] Page Statement, [5]-[6]: AB V2, pp 307-308.

[204] Page Statement, [26]: AB V2, p 310.

[205] Page Statement, [8]: AB V2, p 308.

[206] See the sketch of the crime scene by the crime scene investigator: AB, V1, p 274; the photographs of the crime scene taken by the crime scene investigator: AB, V1, pp 276, 279, 291, 293, 296, 299, 311, 312, another photographs of the scene: AB V2, p 1136; photographs of the scene taken by Sergeant Chambers: AB V2, p 1147; aerial photograph of the Maningrida barge ramp and landing area taken prior to the Maningrida project works: AB V2, p 166; photograph in the report for the coroner: AB V2, p 1157; sketch of the scene drawn by Mr Brian: AB V2, p 485; Chambers Statement, [13], [17]: AB V2, p 1141.

[208] Transcript, AB V1, pp 92-93.

[209] Kalidonis Statement, [50]: AB V2, p 13.

[210] Kalidonis Statement, [50]: AB V2, p 13.

[211] Recorded Statement of Ross Brian made on 21 March 2020 ('Brian Statement'): AB V2, pp 431-432.

[212] Brian Statement: AB V2, pp 344-345, 371-372; Reasons at [54]. Mr Brian's drawing of the 'slinger is at AB V2, p 484.

[213] Brian Statement: AB V2, pp 345, 370-372, 388.

[214] Brian Statement: AB V2, p 345; Reasons at [54].

[215] Brian Statement: AB V2, pp 373-378.

[216] Brian Statement: AB V2, pp 345, 388; Reasons at [55].

[217] Brian Statement: AB V2, pp 345, 391-393; Reasons at [56].

[218] Brian Statement: AB V2, pp 349-358, 485-486; Reasons at [55].

[219] Complaint, [30]: AB V1, p 11.

[220] Complaint, [31]: AB V1, p 11.

[222] Reasons at [68]. This is the subject of Ground 3 dealt with below.

[223] Reasons at [66]. This falls within the particularised reasonably practicable measure pleaded in the Complaint, [18(c)].

[224] Reasons at [67], [70]. This falls within the particularised reasonably practicable measure pleaded in the Complaint, [18(a)(v), (c)(i) and (f)].

[225] Reasons at [69], [74]. See paragraph 18(a)(ii) of the complaint.

[226] Brian Statement: AB V2, pp 423-424.

[227] Brian Statement: AB V2, p 425.

[228] Brian Statement: AB V2, pp 426, 427-428.

[229] Brian Statement: AB V2, p 426.

[230] Brian Statement: AB V2, p 451.

[231] Brian Statement: AB V2, pp 467-469.

[232] Reasons at [67], [72]. This falls within the particularised reasonably practicable measure pleaded in the Complaint, [18(h)].

[233] Reasons at [69], [72], [77]. This falls within the particularised reasonably practicable measure pleaded in the Complaint, [18(a)(iii), (v) and (h)].

[234] Reasons at [76]. This falls within the particularised reasonably practicable measure pleaded in the Complaint, [18(f), (g)].

[235] Reasons at [54]. This paragraph says '[t]he straps were available and had not been tagged out', but this is clearly a reference to Mr Pastrikos' evidence, quoted at [41], that the chain used on 12 March 2020 was not tagged out or removed from service.

[251] Perry v Exactmix Pty Ltd [2014] SAIRC 7.

[258] Hillman v Bridgestone Australia Ltd [2011] SAIRC 1.

[262] Ibid at [37]-[44], [41]-[55].

[266] Citing Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288 at [185], [187].

[267] Which was the finding made in Hillman referred to above and relied on by Kalidonis. In Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92, the High Court took no issue with the Victorian Court of Appeal's conclusion that the jury should have been directed to consider whether the prosecution had established beyond reasonable doubt that the appellant's engagement of subcontractors to do the work was 'not sufficient' to discharge the appellant's obligation so far as was reasonably practicable to provide and maintain a safe working environment.

[268] Baiada Poultry Ptd Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92 at [15] per French CJ, Gummow, Hayne and Crennan JJ.

[276] Mason v The King [2024] NTCCA 13 at [56] per Kelly, Brownhill and Burns JJ..

[277] Markarian v The Queen (2005) 228 CLR 357 at [27] per Gleeson CJ, Gummow, Hayne and Callinan JJ.

[278] Truong v The Queen [2015] NTCCA 5; (2015) 35 NTLR 186 at [37] per Kelly J, citing Hanks v The Queen [2011] VSCA 7 at [22] per Bongiorno JA at [22] (Redlich JA agreeing).

[280] See AB v The King [2023] NTCCA 8 at [99], [101] per Grant CJ, Barr and Brownhill JJ.

[281] See Comcare v Commonwealth [2007] FCA 662; (2007) 163 FCR 207 at [120] per Madgwick J. See also Titan Plant Hire Pty Ltd v Work Health Authority [2023] NTSC 88 at [47] per Kelly J.

[282] See Director of Public Prosecutions (Vic) v Amcor Packaging Australia Pty Ltd [2005] VSCA 219; (2005) 11 VR 557 at [35] per the Court.

[283] See Director of Public Prosecutions (Vic) v Frewstal Pty Ltd [2015] VSCA 266; (2015) 47 VR 660 at [127] per Priest and Kaye JJA.

[284] Transcript of Sentencing Remarks, 18 February 2025, pp 3, 4.

[285] Transcript of Sentencing Remarks, 18 February 2025, pp 3, 4.

[286] Transcript of Sentencing Remarks, 18 February 2025, pp 3, 4.

[287] Transcript of Sentencing Remarks, 18 February 2025, p 4.

[288] Sentencing Act 1995 (NT), s 17(1).

[289] Sentencing Act 1995 (NT), s 17(2).

[290] Affidavit of Luke Samuel Officer made on 30 January 2025 ('Officer Affidavit'), [11], Annexure LSO-9.

[291] Officer Affidavit, [3], [11], Annexures LSO-1, LSO-9.

[292] A Freiberg, Fox & Freiberg's Sentencing - State and Federal Law in Victoria, 3rd ed, Thomson Reuters, [6.155]-[6.160], the latter citing The Queen v Daetz [2003] NSWCCA 216 at [62] per James J.

[294] Officer Affidavit, [3], Annexure LSO-1.

[295] Transcript of Sentencing Remarks, p 4.

[296] Officer Affidavit, [4], Annexure LSO-2.

[297] Officer Affidavit, [5], Annexure LSO-3.

[298] Officer Affidavit, [6], Annexure LSO-4.

[299] Officer Affidavit, [7], Annexure LSO-5.

[300] Officer Affidavit, [8], Annexure LSO-6.

[301] Officer Affidavit, [9], Annexure LSO-7.

[302] Officer Affidavit, [10], Annexure LSO-8.

[303] Officer Affidavit, [12], Annexure LSO-10.

[304] Transcript of Sentencing Remarks, p 4.

[305] Transcript of Sentencing Remarks, p 4, referring to the offending not being at the same level as that in Titan Plant Hire Pty Ltd v Work Health Authority [2023] NTSC 88 ('Titan') at [48] per Kelly J.

[306] Work Health Authority v Outback Ballooning (unreported, NTSC, 22 July 2021).

[307] SafeWork NSW v Saunders Civilbuild Pty Ltd (unreported, NSWSC, 18 May 2022).

[308] Work Health Authority v Whittens Pty Ltd (unreported, NTLC, 3 April 2023).

[309] Work Health Authority v OM (Manganese) Pty Ltd (unreported, NTLC, 11 October 2023).

[310] The Local Court's sentence was upheld by the Supreme Court in Titan.

[311] Comcare v Department of Defence [2021] NTLC 023.