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[2025] NSWDC 248
General information, not legal advice.
District Court of NSW
2025-07-10
Russell SC DCJ
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Medium Neutral Citation: SafeWork NSW v Deemah Stone Pty Ltd [2025] NSWDC 248
Hearing dates: 1 July 2025
Date of orders: 10 July 2025
Decision date: 10 July 2025
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision: (1) Dismiss the Notice of Motion filed by the defendant on 16 January 2025.
(2) Reserve the costs of the Notice of Motion, to be dealt with at the conclusion of these proceedings.
Catchwords: PROCEDURAL – Motion to dismiss because the proceedings were brought out of time – past alleged offences were observed outside limitation period – new, distinct and different alleged offences were observed within limitation period – defendants are not immunised from risks and breaches of duty because they are guilty of an earlier alleged offence – object of the WHS Act would be defeated – present proceedings brought within limitation period
Legislation Cited: Work Health and Safety Act 2011 (NSW), ss 3, 17, 19 32, 33, 47, 232
Work Health and Safety Regulation 2017 (NSW), cll 346, 368
Cases Cited: Prime Marble & Granite Pty Ltd v SafeWork NSW [2024] NSWCCA 105
Category: Procedural rulings
Parties: SafeWork NSW (Prosecutor)
Deemah Stone Pty Ltd (Defendant)
Representation: Counsel:
P English / S Populin (Prosecutor)
P Barry (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
Lionheart Lawyers (Defendant)
File Number(s): 2023/432502
Deemah Stone Pty Ltd (Deemah) operated a stonemasonry business which included the fabrication and installation of manufactured and natural stone products. Workers were required to cut, grind or polish stone products at the business premises of Deemah. This work created airborne respirable crystalline silica (RCS).
In 2019 and 2020 inspectors from the regulator SafeWork NSW (SafeWork) attended the Deemah premises and observed the working conditions. As a result of those two visits Improvement Notices were served upon Deemah. Deemah complied with those Improvement Notices. SafeWork inspectors visited the premises again in 2022. Three further Improvement Notices were served.
By a Summons filed on 29 November 2023 SafeWork has prosecuted Deemah alleging a breach of its health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (the WHS Act). The Summons alleges that Deemah failed to comply with that duty contrary to s 33 of the WHS Act. The Summons alleges that the time of the offence was from 20 February 2021 to 21 February 2022. Thus SafeWork has alleged the commission of a continuing offence.
The primary duty of care prescribed by s 19 of the WHS Act is as follows:
19 Primary duty of care
(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—
(a) workers engaged, or caused to be engaged by the person, and
(b) workers whose activities in carrying out work are influenced or directed by the person,
while the workers are at work in the business or undertaking.
(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
17 Management of risks
A duty imposed on a person to ensure health and safety requires the person—
(a) to eliminate risks to health and safety, so far as is reasonably practicable, and
(b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.
33 Failure to comply with health and safety duty—Category 3
A person commits a Category 3 offence if—
(a) the person has a health and safety duty, and
(b) the person fails to comply with that duty.
Deemah filed a Notice of Motion on 16 January 2025 seeking dismissal of the proceedings and an order for costs. The basis for that application was that the Summons was not filed within the two-year period prescribed by s 232 of the WHS Act.
Section 232(1) of the WHS Act provides as follows:
232 Limitation period for prosecutions
(1) Proceedings for an offence against this Act may be brought within the latest of the following periods to occur—
(a) within 2 years after the offence first comes to the notice of the regulator,
(b) within 1 year after a coronial report was made or a coronial inquiry or inquest ended, if it appeared from the report or the proceedings at the inquiry or inquest that an offence had been committed against this Act,
(c) if a WHS undertaking has been given in relation to the offence, within 6 months after—
(i) the WHS undertaking is contravened, or
(ii) it comes to the notice of the regulator that the WHS undertaking has been contravened, or
(iii) the regulator has agreed under section 221 to the withdrawal of the WHS undertaking.
Annexure A of the Summons alleges in par 9 that “there was a risk of workers of [sic] being exposed to repeated inhalation of RCS and acquiring silicosis or other respiratory disease or illness arising from the Tasks”. Paragraph 6 of Annexure A of the Summons pleads that the “Tasks” were cutting, grinding or polishing manufactured or natural stone products at the Deemah premises.
Paragraph 10 of Annexure A of the Summons pleads the failure to comply with the duty under s 19(1) of the WHS Act. SafeWork alleges that Deemah failed to ensure, so far as is reasonably practicable, the health and safety of workers in that it failed to take one or more of the following measures, each of which was reasonably practicable to minimise the risk:
Developing, implementing and enforcing a safe work system for the reduction of exposure to RCS, including provision of appropriate respiratory equipment (RPE) and the cleanup and disposal of dust or slurry created.
Developing, implementing and enforcing a Respiratory Protection Program (RPP) which included:
(a) Selection, provision and use of appropriate RPE (b) Requiring “fit testing” for the make and model of RPE provided (c) Training in the selection, use, maintenance and storage of the RPE (d) A clean shaven policy mandating the need to be clean shaven for close-face fitting respiratory protection
On 10 May 2019 Inspector Sankaran attended the Deemah premises. From his review of documentation and his observation of the premises, he formed the view (PX 1, par 16) that the following contraventions of the WHS Act and the Work Health and Safety Regulation 2017 (NSW) (the WHS Regulation) had occurred:
Health monitoring records were not available and workers were not provided with health monitoring – s 19 of the WHS Act and cl 368 of the WHS Regulation.
A hazardous chemical register containing current SDSs was not available – cl 346 of the WHS Regulation.
Workers were not consulted regarding the risk of exposure to silica dust and no consultation records were available – s 47 of the WHS Act.
Workers were not provided with RPE fit tests – s 19 of the WHS Act.
Inspector Sankaran served Deemah with four Improvement Notices dated 13 May 2019. Only two are relevant to the present issue.
Improvement Notice number 7-352989 (DX 2, annexure A) stated that the WHS Act was being contravened because workers were at a significant risk to their health (eg developing silicosis) from regularly working with stone products that involved tasks generating RCS. Workers were observed cutting, shaping, grinding or polishing stone products. That Improvement Notice alleged that Deemah had “not provided health monitoring for workers at significant risk of [sic] health from exposure to RCS, as per Schedule 14 of the WHS Regulation 2017”.
The Improvement Notice directed Deemah to provide health monitoring for workers who were exposed to a significant risk to health from exposure to RCS. The requirements of such health monitoring were listed in the Notice.
The written submissions for Deemah noted that this Improvement Notice, concerned with health monitoring, was in similar terms to par 10(f) of Annexure A of the Summons, which alleged that Deemah failed to develop, document and implement a Health Surveillance and Monitoring program.
Improvement Notice number 7-352997 (DX 2, Annexure B) alleged that workers were exposed to a serious risk to their health and safety as they had not been provided with information, training and instruction on the proper use, wearing, storage and maintenance of RPE to prevent the risk of injury from exposure to RCS.
The Improvement Notice directed Deemah to provide workers with information, training and instruction on the proper use, wearing, storage and maintenance of RPE. The Notice also required Deemah to provide/conduct a fit-test to select appropriate RPE.
The written submissions for Deemah noted that the matters covered by this Improvement Notice are included in the following sub-paragraphs of Annexure A of the Summons, as allegations of failure to comply with the health and safety duty: 10(a)(i), 10(b)(i), 10(b)(ii), 10(g)(i) and 10(g)(ii).
Inspector Lau served Improvement Notice 7-386244 dated 16 November 2020 (DX 2, Annexure C). The Notice stated that workers may be exposed to a risk to health and safety as dry sweeping practices were used to remove dust containing RCS. The Notice specifically referred to using a dry sweeper machine to clean dust from floors as an unsafe work practice. The Notice required Deemah to develop and implement a system of work for cleaning the factory which eliminated the risks to health and safety associated with dry sweeping or dry cleaning practices of dust that contained RCS.
The written submissions for Deemah said that par 10(a)(ii) of Annexure A of the Summons contained a similar allegation to that contained in this Notice, in the sense that it alleged that the defendant failed to enforce a safe work system with respect to the clean-up and disposal of dust and/or slurry created while performing tasks.
On 21 February 2022 Inspector Lau and Inspector Kearney inspected the Deemah premises. They observed the following (PX2, par 22):
A worker with a beard was wearing a disposable P2 mask while cutting stone.
A worker was wearing a surgical mask instead of a P2 mask while polishing stone.
A significant amount of dust was on the floor near the water treatment system.
The dust observed on the floor was caused by spillages when workers replaced bags containing dust or slurry.
Inspector Lau served three Improvement Notices dated 22 February 2022 (PX 2, Annexure H). The Notices were directed to Stone Fabrications Pty Ltd, a company associated with Deemah. No point was taken by Deemah regarding the identity of the recipient of the Notices.
Improvement Notice 7- 412784 stated the persons may be exposed to a risk to their health from exposure to airborne RCS due to poor housekeeping practices with inadequate dust control measures in place. The Improvement Notice referred to a "significant accumulation of silica dust observed on floor adjacent to water treatment system in factory”. The Improvement Notice directed Stone Fabrications Pty Ltd (and thus also directed Deemah) to develop and maintain a system or work to manage the risk of exposure to airborne dust by not allowing silica dust to accumulate on surfaces, which could then be agitated into airborne silica dust.
Improvement Notice 7- 412786 stated that workers were exposed to a risk to their health or safety as they had not been provided with personal protective equipment (PPE) to prevent the risk of injury from silica exposure. The Notice referred to a worker Nader Baydoun who was observed to be wearing a disposable P2 respirator over a thick facial beard. The Notice directed the recipient to provide PPE to workers which will prevent the risk of injury from exposure to RCS. Bearded workers had to be provided with appropriate respiratory protection such as a Personal Air Purifying Respirator (PAPR).
Improvement Notice 7-412790 stated that workers may be exposed to a risk to their health or safety as they had not been provided with information, training and instruction on the proper use, wearing, storage and maintenance of PPE provided to prevent the risk of injury from exposure to airborne RCS. The recipient of the Notice was directed to provide workers with information, training and instruction on the proper use, wearing, storage and maintenance of PPE provided to prevent the risk of injury from inhalation of airborne RCS. The Notice said that the recipient must:
“Provide clear guidance to workers that surgical type masks are not appropriate PPE for respirable silica dust. P2 rated respirators are a minimum standard and workers need to be clean shaven for the respirators to provide maximum protection, however there are alternative PPE choices available for bearded workers.”
On 7 April 2022 Inspector Lau confirmed compliance with Improvement Notices 7-412784 and 7-412786 after receiving photographs and explanations from Deemah of how the contraventions had been remedied.
On 13 April 2022 Inspector Lau confirmed compliance with Improvement Notice 7-412790 after receipt of training records from Deemah.
Inspector Lau updated SafeWork’s internal system to record compliance with the three Improvement Notices.
Both counsel referred to the recent decision of the Court of Criminal Appeal in Prime Marble & Granite Pty Ltd v SafeWork NSW [2024] NSWCCA 105 (Prime Marble). That decision directly concerns the meaning and operation of s 232 of the WHS Act and the applicable limitation period for prosecutions under the WHS Act. The charge in that case was brought under s 32 of the WHS Act. This involves an additional element, over and above the two elements in s 33 of the WHS Act, which is the charge brought against Deemah.
Section 32 of the WHS Act provides as follows:
32 Failure to comply with health and safety duty—Category 2
A person commits a Category 2 offence if—
(a) the person has a health and safety duty, and
(b) the person fails to comply with that duty, and
(c) the failure exposes an individual to a risk of death or serious injury or illness.
Certain propositions in the Prime Marble decision are equally applicable to the present charge under s 33:
SafeWork bears the onus of establishing that the proceedings were brought within time: Prime Marble at [17]. In these proceedings there was no agreement as to whether that onus was on the balance of probabilities or beyond a reasonable doubt. However, counsel reached a joint position, with which I respectfully concur, that there was no dispute about any of the evidence in the present case, and the court was really faced with a “yes or no” issue, rather than a “burden of proof” issue.
An offence first comes to the notice of the regulator when it has information sufficient to give reasonable grounds for a belief that the offence has been committed. It is not necessary that the regulator was actually in possession of evidence capable of indicating that the offence had been committed, although possession of evidence will be sufficient to establish the reasonable grounds test. Reasonable grounds requires the existence of facts which are sufficient to induce a belief in the existence of those grounds in a reasonable person. It is not necessary for the person to actually hold the belief: Prime Marble at [18].
It is not necessary for the regulator to have notice of the identity of any particular worker put at risk: Prime Marble at [19].
For the purposes of determining whether proceedings have been commenced within time in accordance with s 232(1)(a), the relevant inquiry must be directed to the question of when the regulator first gets notice of the offence alleged in the summons commencing the proceedings: Prime Marble at [33].
The issue of when the limitation period begins to run calls for identification of the date when SafeWork had notice of the risk to which an individual had been exposed by reason of the failure to comply with the relevant duty: Prime Marble at [42].
It is important to have regard to the facts and background in Prime Marble. A SafeWork inspector had attended the Prime Marble premises in August 2017. The inspector became aware of levels of RCS which put workers at risk. An Improvement Notice was served.
Unbeknown to SafeWork, two workers at the factory, who were not in attendance on the day of the SafeWork inspection, had been exposed to large quantities of RCS. Both died several years later. When SafeWork became aware of that, it commenced proceedings based upon s 19(1) and s 32 of the WHS Act.
The Court of Criminal Appeal held that s 32(c) of the WHS Act is not concerned with the question of whether or not the risk has materialised in the sense that the exposure leads, or has led, to death or serious injury or illness. Section 32(c) refers to a failure which exposes an individual to a risk of death or serious injury, not to a failure which causes death or serious injury or illness: at [34].
“I consider that the existence of knowledge on the part of SafeWork of these dust concentrations must necessarily equate to notice of exposure of Prime Marble’s workers to the relevant risk. It must follow that the summons in each case was filed more than two years after such notice was received. His Honour’s decision that notice is dependent on knowledge of Mr Zhang and Mr Geng is an error of principle. The continuation of the proceedings is therefore an abuse of process.”
Counsel for Deemah undertook a detailed analysis to demonstrate the congruence between the matters alleged in the 2019 and the 2020 Improvement Notices and the Particulars provided in par 10 of Annexure A of the Summons.
The consequence of the similarities between the initial Improvement Notices and the Summons were summarised as follows (MFI 1):
“17. It is clear from the Improvement Notices issued to the defendant on 10 May 2019 and 13 November 2020 that from those respective dates the regulator was on notice of alleged offences by the defendant specifically relating to its:
(a) provision of appropriate PPE;
(b) appropriate clean-up and disposal of dust at its site;
(c) the selection, provision and use of appropriate RPE;
(d) the need to undertake fit testing;
(e) the need for health surveillance monitoring;
(f) the requirement for the provision of information, instruction and training in relation to the risks associated with the cutting of stone containing RCS,
and that as a result of a lack of provision of the above, that workers are exposed to a serious risk to their health or safety.
18. In the Summons filed 29 November 2023:
(a) The tasks referred to in the Summons are the tasks referred to in the Improvement Notices.
(b) The risk pleaded in the Summons is the risk referred to in the Improvement Notices; and
(c) The allegation of a contravention of s 19 of the WHS Act in the Summons is the allegation of contravention of the WHS Act in the Improvement Notices.”
“33. SafeWork had two years from 10 May 2019 to commence proceedings against the defendant alleging a contravention of that offence. Because SafeWork brought the proceedings against the defendant on 29 November 2023, instead of 10 May 2021 at the latest (being two years after 10 May 2019), the proceedings were brought out of time.”
Counsel for SafeWork submitted that the charge in the Summons was based on observations made by Inspectors Lau and Kearney during their inspection of the Deemah premises on 21 February 2022. This signifies the commencement date of the charge period for the pleaded offence.
Counsel also submitted that the previous inspections of the Deemah premises on 10 May 2019 and 13 November 2019 resulted in Improvement Notices, which were ultimately complied with. In my view that is an irrelevant matter. The later compliance with the Improvement Notices did not mean that the offences, if any, committed in May 2019 and November 2020, did not happen. This court sees a large number of prosecutions by SafeWork; in some cases there are no Improvement Notices issued; in other cases there are Improvement Notices issued, which are later complied with, but a prosecution still results because the offence has been committed.
Counsel for SafeWork submitted that the observations made by Inspectors Lau and Kearney on 21 February 2022 were in respect of a fresh and distinct s 33 WHS Act offence, rather than a continuing state of affairs reaching back to either 10 May 2019 or 13 November 2020.
Finally, counsel for SafeWork submitted, in the alternative, that as only some of the contraventions comprising the earlier Improvement Notices are common to the Particulars pleaded in par 10 of the Summons, the court would permit SafeWork to make an election so as to rely on “any such non-offending particulars”.
It is beyond doubt that SafeWork cannot now prosecute Deemah for any breaches of the WHS Act which were observed by Inspector Sankaran during his visit to the Deemah premises on 10 May 2019. SafeWork then knew of the commission of an alleged offence. In the relevant Improvement Notices dated 13 May 2019 Inspector Sankaran specifically states that he reasonably believed that Deemah was contravening a provision of the WHS Act. This is contained in each Improvement Notice in the box entitled “Details of contravention”.
The decision in Prime Marble makes it clear that the relevant inquiry in relation to the limitation period is the question of when the regulator first obtained notice of the offence alleged in the Summons commencing the proceedings. The present Summons does not allege an offence in May 2019, nor could it. Inspector Sankaran, and thus SafeWork, had notice of the commission of an alleged offence on 10 May 2019. The two-year limitation for prosecuting Deemah in relation to that contravention of its breach of duty expired on 10 May 2021. The Summons in the present proceedings was filed over two years later.
It is equally clear that SafeWork could now not prosecute Deemah for the alleged breaches of the WHS Act observed during the inspection on 13 November 2020. Again, the Improvement Notices issued as a result of that inspection specifically stated that Inspector Lau reasonably believed that Deemah was contravening a provision of the WHS Act. The two-year limitation period for bringing proceedings in respect of the alleged contraventions on 13 November 2020 expired on 13 November 2022. The Summons in the present proceedings was filed over one year later.
It is important to distinguish the factual background to the decision in Prime Marble, from the facts of the present proceedings. In Prime Marble SafeWork obtained notice of the risk posed by RCS dust to employees in 2017. Many years later it found out that two of the Prime Marble workers, who were employed by Prime Marble in 2017, but who were not at work on the day of the inspection, had died from silicosis. There was no change in the dangerous conditions in the Prime Marble factory from 2017 onwards. SafeWork was essentially attempting to prosecute Prime Marble for the dangerous conditions which it knew existed in 2017, many years after the two-year limitation period expired. As the Court of Criminal Appeal pointed out in Prime Marble, it was not an essential element of the s 32 offence for SafeWork to be able to identify individuals who were exposed to the risk. The crucial factor was the existence of the risk, rather than the identity of the particular individuals exposed to that risk. It was the 2017 risk which SafeWork used as the foundation for its later prosecution of Prime Marble by a Summons filed outside the two-year limitation period.
By contrast, the three visits by SafeWork inspectors to the Deemah premises disclosed distinct and different risks and breaches of Deemah’s work health and safety duty on each occasion. For example, the 21 February 2022 inspection discovered a significant accumulation of silica dust observed on the floor adjacent to the water treatment system in the factory. This was not there on the 2019 or 2020 visits. It was a new problem which created a new risk. The presence of the accumulation of silica dust adjacent to the water treatment system was a risk, and a breach of the WHS Act, which did not occur and was not present in 2019 or 2020. It was present, and became known to SafeWork for the first time, on 21 February 2022. In my view the two-year limitation in respect of that breach of the work health and safety duty of Deemah commenced to run on 21 February 2022 and thus that part of the Summons which pleads that breach has been brought within time.
SafeWork NSW
Deemah Stone Pty Ltd [2025] NSWDC 248
The trial judge had held that time began to run under the WHS Act when SafeWork received notice of the death of the two workers. Speaking of the 2017 inspection and observations, Harrison CJ at CL said at [48]:
A similar consideration applies to the observations made by the inspectors on 21 February 2022 that a worker Mr Baydoun was wearing a disposable P2 respirator over a thick facial beard. That was not an observation made in 2019 or 2020. Indeed, after Inspector Sankaran issued Improvement Notice 7-352997, he again attended the Deemah premises and was satisfied that proper RPE was being used, worn, stored and maintained. The event observed on 21 February 2022 when a bearded worker was wearing an inappropriate P2 respirator, was a new risk and a new breach of the work health and safety duty of Deemah.
A similar approach is required in relation to Improvement Notice 7-412790, which records that surgical type masks were not appropriate PPE for respirable silica dust, and P2 respirators should only be used for workers who were clean shaven. The observation that a worker was wearing a surgical-type mask, rather than a P2 respirator, was made for the first time on 21 February 2022. Inspector Sankaran, who had raised the problem of lack of respiratory protection back in 2019, was satisfied that his concerns were assuaged by compliance with his Improvement Notice on that topic. It was a new and different risk and a breach of the work health and safety duty, for Deemah in 2022 to permit a worker to wear a surgical mask rather than an appropriate respirator.
It is correct, as submitted by counsel for Deemah, that the risk of harm to workers caused by inadequate RPE observed by Inspector Sankaran in May 2019 was a similar risk to that observed by Inspector Lau in February 2022. Further, Inspector Sankaran raised the necessity for Deemah to conduct appropriate RPE fit tests in Improvement Notice 7-352997. The same topic was raised by Inspector Lau in February 2022 in Improvement Notice 7-412786 (concerning a bearded worker) and Improvement Notice 7-412790 (concerning a worker wearing a surgical-type mask not a P2 respirator).
However, the risks with RPE at the Deemah premises in 2019 were distinct and different risks when compared with the observations made by Inspector Lau in February 2022. Inspector Sankaran confirmed that his Improvement Notices had been complied with, and thus by the time of that compliance in 2019 appropriate RPE was being worn by all workers at the Deemah premises. Apparently, standards slipped between 2019 and 2022, when Inspector Lau made specific observations concerning the bearded worker and the worker wearing only a surgical mask.
It cannot be the case that because Deemah was guilty of an alleged offence in 2019 concerning inappropriate RPE, it is somehow immunised from risks and breaches of its obligation in respect of RPE which occurred much later. These risks and breaches occurred not only at a different time, but were breaches of duty committed in a different fashion.
To take a hypothetical example, prosecutions involving collisions between forklifts and workers are regrettably very common in this court. Assume that an employer was found guilty of a breach by failing in 2015 to separate forklifts from pedestrians, but improved its practices later in 2015 so that collisions could no longer occur. It defies common sense, reason and logic that if it later failed to observe proper measures in 2025, and there was another collision between a forklift and a worker on foot, the employer would be immune from prosecution because it had committed a similar offence and created an identical risk back in 2015.
The first object of the legislation, set out in s 3(1)(a) of the WHS Act, is to protect workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work. It would entirely defeat that object if an employer created a risk and committed a breach of the WHS Act several years ago, but somehow that risk and that breach meant that it could not now be prosecuted for a similar breach which was committed much later in time. The reductio ad absurdum of the Deemah argument would be that once it had committed a breach of the Act, it could never again be prosecuted for committing the same or a similar breach many years later.
For these reasons I find that the present proceedings have been brought within the two-year limitation period prescribed by s 232 of the WHS Act. The Deemah Notice of Motion will be dismissed. The parties agreed that in those circumstances the appropriate costs order would be to reserve costs, to be dealt with at the conclusion of the proceedings. The matter will be retained in my list for the making of directions and the entry of a plea.