SafeWork NSW v Edstein Creative Pty Ltd [2022] NSWDC 117 | Case summary

District Court of NSW|2022-04-11

Solicitors: SafeWork NSW (Prosecutor) Macpherson Kelley (Defendant) File Number(s): 2021/00181676

Introduction

The defendant in these proceedings filed a Motion on 8 February 2022 seeking orders: 1. Dismissing the Summons; or 2. Permanently staying the Summons; or 3. Staying the Summons until proper particulars are provided.
The application for orders (1) and (2) is founded upon s 232 of the Work Health and Safety Act 2011 (NSW) (the Act).
The application for order (3) requires proper particulars to be provided of: 1. When the offence was committed. 2. Where the offence was committed. 3. The identity of each worker said to have been exposed to the pleaded risk.
The defendant also seeks costs of the proceedings or of the Motion.

The Offence Alleged

The Summons was filed on 24 June 2021. It alleges that the defendant had a duty under s 19(1) of the Act to ensure so far as was reasonably practicable the health and safety of its workers and that it failed to comply with that duty. The Summons alleges that the failure to comply with the duty exposed a worker, AB (a pseudonym), to a risk of serious illness contrary to s 32 of the Act.
The Summons particularises the date of the offence as "1 January 2012 to 1 November 2018" and the place of the offence as "Newcastle and Hunter regions, New South Wales". Further particulars are provided in Annexure 'A' to the Summons as follows: 1. The Newcastle and Hunter region was a 'workplace' within the meaning of s 8 of the Act. 2. The defendant engaged AB as an installer of manufactured stone products. 3. AB worked between 1 January 2012 and 1 November 2018 installing manufactured stone products, which involved cutting, grinding, drilling or polishing. 4. The manufactured stone products contained crystalline silica.
The risk was pleaded as "the risk of workers, in particular AB, acquiring serious illness, in particular accelerated silicosis, as the result of the inhalation of respirable crystalline silica (RCS)" while performing work as an installer.
Paragraph 8 of Annexure 'A' pleaded particulars of the alleged failure of the defendant to comply with its duty under s 19(1). Inter alia, the prosecutor particularised the failure to use wet cutting, failure to use a dust extraction system and failure to ban dry cutting.
Paragraph 9 of Annexure 'A' pleaded that as a result of the defendant's failures, "workers, and in particular AB, were exposed to a risk of acquiring serious occupational illnesses".
Par 10 of Annexure 'A' alleges that the "serious occupational illnesses acquired by AB were a manifestation of the risk".
I will return to the matters pleaded in the Summons below when dealing with whether the particulars supplied so far are adequate. However some matters jump out straight away:
The description of the offence on the first page of the Summons confines the charge to exposing AB only to risk.
The range of dates of commission of the offence seems to relate only to AB.
The notion that "the Newcastle and Hunter regions" was the workplace of AB is surely too broad, given that s 8 of the Act defines "workplace" as "a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work".
The particulars of the failure to comply with the s 19(1) duty are said to be failures in relation to "workers, in particular AB", yet the identity of the workers who the defendant failed to protect is not pleaded in par 8 of the Annexure 'A'.
Further, one asks rhetorically, which of the pleaded measures applied to workers, generally or in particular?
The exposure to risk pleaded in par 9 of Annexure 'A' fails to nominate the names of workers other than AB, and introduces the broad risk of "serious occupational illnesses" and not just accelerated silicosis (as alleged in relation to AB alone). Yet the paragraph does not nominate which workers were exposed to the risk. Nor does it plead their illnesses (let alone confine such illnesses to ones caused by RCS).
The prosecutor served a Statement of Facts with the Summons. Pars 49-56 allege that installers were dry cutting manufactured stone using power tools, without stating which workers (apart from AB) were thus exposed to RCS and the risk of a respiratory disease.
In pars 20 and 25 two other workers, Mr Putney and Mr Whyte-Butler, are introduced for the first time. Par 151 alleges that Mr Putney now suffers from accelerated silicosis and par 152 alleges that Mr Whyte-Butler has chronic simple silicosis. It is not at all clear whether these two workers fall into the overarching category of "workers" in the Summons, or whether there was a breach of duty or an exposure to risk in relation to either of them.
Again, I will return to these matters when considering particulars below. I turn to consider whether the Summons has been filed outside the two-year time limit prescribed by s 232 of the Act.

Limitation Period for Prosecutions

Section 232(1)(a) of the Act provides that proceedings for an offence against the Act may be brought within two years after the offence first comes to the notice of the regulator.
This requires a simple factual determination. The Summons was filed on 24 June 2021. Two years before that date is 24 June 2019. Did the offence come to the notice of the regulator before 24 June 2019? If it did, the proceedings are an abuse of process which are doomed to fail and the Summons should be dismissed.
This requires an examination of the evidence tendered on the Motion about events which pre-dated 24 June 2019. That evidence is to be found in the affidavit of Mr Girle solicitor dated 21 February 2022 (DX 1) and the affidavit of Inspector Seneviratne dated 17 March 202 (PX 1).

Evidence of Events before 24 June 2019

In 2012 there was an inspection by the regulator of a "facility" operated by the defendant (DX 1 par 10). There was no evidence of which premises were inspected (the defendant operated from three) or what was observed during the visit. In any event the Summons pleads that AB worked as an installer all over the Newcastle and Hunter region, which implies that he did not work at a "facility".
There was no evidence that this inspection gave the regulator notice of commission of the offence.
On 26 July 2018 Inspector Barron visited the defendant's Taree premises and produced an Inspection Report dated 27 July 2018 (DX 1-04). The Inspector was quite satisfied with the control of dust and RCS at Taree. There is nothing in the Inspection Report to suggest that he was told anything about conditions under which installers worked on site.
There was no evidence that this report gave the regulator notice of commission of the offence.
On 28 August 2018 iCare sent an email to the defendant (DX 1-10). The regulator was not copied in. The email simply contained information about the lung screening services offered to employers by iCare.
There was no evidence that this email gave the regulator notice of commission of the offence.
On 3 October 2018 a report was submitted by an undergraduate student studying at the University of Western Sydney concerning dust exposure at the defendant's Taree premises (DX 1-05). SafeWork NSW provided Reports of Analysis of dust samples collected at Taree by the student (pp 42-50). The report specifically stated (par 4.2.6) that field installation was not monitored.
There was no evidence that this report gave the regulator notice of commission of the offence.
On 18 October 2018 an email was sent by the regulator to the members of a Taskforce dealing with the risks of RCS exposure (DX 1-06). The email said that the defendant was supporting the taskforce by providing access to its workshop to produce a safety video concerning general crystalline silica safety. The video was produced and is still available online (DX1 par 15).
There was no evidence that this exercise gave the regulator notice of commission of the offence.
On 25 January 2019 the regulator sent an email to the defendant inviting it to give a presentation about silica safety at a forum to be held on 20 February 2019 (DX 1-08). The Agenda for that forum stated that Mr Ferguson of the defendant was to speak about "controlling dust in fabrication workshop and onsite installation" (DX 1-08). There was no evidence as to what Mr Ferguson said or what onsite installation processes were discussed. It is noted that the processes used in February 2019 were not necessarily the same processes used in the period alleged in the Summons.
There was no evidence that this presentation gave the regulator notice of commission of the offence.
On 30 April 2019 Professor C Sorrell and Mr L Amin published a report entitled "Silica Dust Control and Silicosis" (DX 1-05). This report concerned a draft standard for silica exposure generally and did not deal with the defendant's operation.
There was no evidence that this report gave the regulator notice of commission of the offence.
On 16 May 2019 the defendant sent an email to the regulator (DX 1-11). It referred to two (unnamed) workers who had come from Queensland where they had high levels of RCS exposure and who now had early stage silicosis. The defendant wanted to find out what could be done to keep the two workers employed. There is nothing in this email about the work practices of installers employed by the defendant. Indeed the impression from the email is that the silicosis suffered by each worker resulted from the default of a different employer in a different state.
In an email dated 31 May 2019 (DX1-11) the regulator pointed out that the defendant had an obligation to submit a copy of a health monitoring report to SafeWork NSW.
There was no evidence that these emails gave the regulator notice of commission of the offence.
As previously recited, the crucial date for the purposes of s 232(1)(a) of the Act is 24 June 2019. I find that there was nothing which brought the offence alleged in the Summons to the notice of the regulator before this date. Thus these proceedings have been brought within the limitation period prescribed by s 232(1)(a) and I decline to make order 1 or order 2 sought in the defendant's Motion.
I will not recite the evidence which post-dates 24 June 2019 as there was no submission that anything in that material showed that the regulator was aware of the offence before 24 June 2019.

Adequacy of Particulars

The solicitors for the defendant sent a request for particulars, to which the solicitors for the prosecutor replied by a letter dated 17 December 2021 (DX 1-03). In short, I regard the particulars of when and where the offence was committed, and which workers were exposed to the pleaded risk, to be quite inadequate.
The particulars provided at least stated that AB worked out of the Sandgate factory of the defendant, but travelled to the premises of the defendant's customers to install manufactured stone products. The particulars state that such premises constituted the "workplace" of AB, which is a small improvement on the pleading in the Summons that the entire Newcastle and Hunter region was his workplace.
However the particulars do not say where the premises were, when he went there to perform work, what work he did, and (most importantly) what processes he used to carry out the work. Nor do the particulars attempt to state how much exposure AB had, particularly by reference to a permissible level of RCS exposure (a Workplace Exposure Standard).
The defendant asked for identification of the workers, other than AB, whose safety was endangered by the alleged failures of the defendant. As previously recited, the prosecutor referred many times generically to workers, but also (and perhaps confusingly) to Mr Putney and Mr Whyte-Butler, without making it plain where, when and how they (or workers generally) worked so as to expose them to RCS.
Senior counsel for the defendant submitted that the prosecutor would need to identify: (1) which worker was at risk; (2) the day on which such worker was at risk; and (3) the work which the worker was performing on that day (MFI 2 par 51). He further submitted that without knowing which transaction was being referred to, it was impossible for the defendant and the court to determine whether the measures asserted were reasonably practicable in relation to the transaction (MFI 2 par 55).
I accept both submissions. Without appropriate particulars how can the defendant know what is really being alleged? Will the prosecutor call evidence that there were 50 workers out on site doing dry cutting every day for 6 years between 2012 and 2018? Or was it just AB doing dry cutting on site now and then? Or was it something in between?
The particulars supplied state (DX 1-03 par 3) that: "It is within the defendant's knowledge as to each of the locations that AB performed installation work at the premises of clients of the defendant's manufactured stone products from 1 January 2021 to 1 November 2018". There are several problems with such an answer. Firstly this is a criminal prosecution and the onus remains on the prosecutor to prove each element of the offence beyond a reasonable doubt. The defendant bears no onus to prove or disprove anything. Secondly the defendant should not be expected to guess what the prosecutor is really alleging - at this stage the defendant cannot know who to talk to or what to look for. Thirdly, when the prosecutor wants to make allegations about workers generally, the defendant cannot be expected to interrogate its own records and its entire installation staff when it does not know what the prosecution alleges in relation to the key questions: who, where, when and how?
The written submissions for the prosecutor (MFI 1) do not make matters better. For example, the submissions refer to "particular workers" (par 86) and "other installation workers" (par 87) without making it plain whether the prosecution is confined to events involving AB alone, or includes events involving Mr Putney and Mr Whyte-Butler, or includes the working conditions of other unnamed workers.
The written submissions conclude that "the pleaded risk and the required measures were not site specific" (par 99). And yet they must be. If AB went to a site and installed a stone benchtop without needing to cut it, or did so little cutting on that job that his RCS exposure did not exceed the Workplace Exposure Standard, how would the events of that day prove the offence, either alone or in combination with other evidence?
Senior counsel for the prosecutor submitted that the prosecution was for a "continuing offence", which is an offence committed "day by day so long as the state of affairs which is forbidden continues to exist, and the person responsible for creating that state of affairs is liable day by day for those offences": Sloggett v Adams (1953) 70 WN (NSW) 206 at 208.
Senior counsel for the defendant did accept that a statutory offence may be committed by a series of repetitions of the circumstance which constitute the offence, but that does not make the offence a continuing offence (MFI 5 par 11). He also submitted that the court would need to hear all of the evidence to make a determination that there was a continuing offence (MFI 5 par 13).
In Director-General of the Department of Land and Water Conservation v Greentree & Anor [2003] NSWCCA 31 at [43] the court said: "What emerges from the cases is the need to have regard to the nature of the offence and the facts, matters and circumstances relied upon by the prosecutor when considering the question of particulars."
As discussed above, the facts, matters and circumstances relied upon by the prosecutor are clouded in doubt, particularly in relation to the identity of workers exposed to risk, where they worked, and how they performed their work.
The fact that an offence can classified as a continuing offence does not relieve a prosecutor from its obligation to provide proper particulars so that a defendant knows the case which it has to meet. The defendant made a request for particulars and the prosecutor provided particulars. No further correspondence took place before the filing of the defendant's Motion. The prosecutor has not said that it cannot provide better particulars than it has supplied to date.
I find that the prosecutor has not provided the defendant with adequate particulars of the offence and that I should stay the prosecution until such particulars are provided. I will make order 3 sought in the Notice of Motion.
A stay until particulars are provided leaves open the opportunity for the prosecutor to supply further particulars. Of course it also leaves open the prospect that the defendant disputes whether such particulars are adequate. Hope springs eternal, but to deal with such an impasse the prosecutor could file its own motion seeking to dissolve the stay.

Costs

The defendant seeks costs in order 4 in the Notice of Motion. The defendant has failed in seeking orders 1 and 2 in the Motion. Most of the documentary evidence in the affidavits was directed to this issue. The defendant has succeeded in its argument concerning particulars. This issue took up most of the hearing time.
In the circumstances I find that the proper order is that each party should pay its own costs of the Notice of Motion.

Orders

The orders of the court are: 1. Order that the Summons be stayed until such time as the prosecutor properly particularises the allegations going to: 1. When it is alleged that the offence was committed. 2. Where it is alleged that the offence was committed. 3. The identity of each worker said to have been exposed to the pleaded risk. 1. Order each party to pay its own costs of the defendant's Notice of Motion. 2. Stand the proceedings over to the Work Health and Safety directions list at 9.30am on 2 May 2022. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Amendments 31 July 2023 - The name of the worker alleged to have contracted accelerated silicosis has been anonymised to "AB". 31 July 2023 - Paragraph format 31 July 2023 - Paragraph format DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 July 2023

Work Health and Safety Act 2011(NSW)ss 8, 19, 32, 232

SafeWork NSW v Edstein Creative Pty Ltd

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