SafeWork NSW v Pendle Ham & Bacon Pty Ltd (No 2)

Legislation Cited: Criminal Appeal Act 1912
Evidence Act 1995
Partnership Act 1892
Work Health and Safety Act 2011

Cases Cited: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338
Director General Department of Trade and Investment Regional Infrastructure and Services v Glennies Creek Coal Management Pty Ltd (2013) 239 IR 343
Environmental Protection Authority of NSW v Goulburn Wool Scour Pty Ltd (2004) 137 LGERA 289
Environmental Protection Authority v Grafil Pty Ltd [2019] NSWCCA 174
Ex parte McGavin; Re Berne (1946) 46 SR (NSW) 58
Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288
Jago v District Court of New South Wales (1989) 168 CLR 23
Kirk v Industrial Court of New South Wales (NSW) (2010) 239 CLR 531
Lam v Beesley (1992) 7 WAR 88 at 95
Mifsud v Campbell (1991) 21 NSWLR 725
Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 609
Moore v The King [2024] HCA 30
Orr v Cobar Management Pty Ltd [2020] NSWCCA 220
Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39
SafeWork NSW v BOC Ltd [2020] NSWCA 306
SafeWork NSW v Pendle Ham & Bacon Curers Pty Ltd [2024] NSWDC 395
SafeWork NSW v Pendle Ham & Bacon Pty Ltd [2025] NSWDC 63
SafeWork NSW v Scharfe [2021] NSWDC 260
Saunders Civilbuild Pty Ltd v SafeWork NSW [2023] NSWCCA 261
Talay v R [2010] NSWCCA 308
Todorovic v Moussa (2001) 53 NSWLR 463
Western Sydney Local Health District v SafeWork NSW [2024] NSWCCA 153

Category: Principal judgment

Parties: SafeWork NSW (Prosecutor)
Pendle Ham & Bacon Pty Ltd (Defendant)
Pendle Ham & Bacon Curers Pty Ltd (Defendant)
PHBC LH Pty Ltd (Defendant)
Michael Zammit (Defendant)

Representation: Counsel:
J Stratton SC with B Docking
M Shume
Solicitors:
Legal, Department of Customer Service (Prosecutor)
Hall & Wilcox (Defendants)

File Number(s): Pendle Ham & Bacon Pty Ltd - 2023/160834 and 2023/160857
Pendle Ham & Bacon Curers Pty Ltd - 2023/160812 and 2023/160871
PHBC LH Pty Ltd - 2023/160882
Michael Zammit - 2023/160822

Publication restriction: None

Judgment

Introduction

1. On 17 March 2025 I published my primary judgment in these matters: SafeWork NSW v Pendle Ham & Bacon Pty Ltd [2025] NSWDC 63 (PJ).

2. These reasons assume familiarity with the primary judgment. I will use the defined terms in the primary judgment and refer to members of the Zammit family by their first names.

3. The prosecutor seeks that pursuant to s 5AE Criminal Appeal Act 1912 that I submit seven questions of law (Questions) to the Court of Criminal Appeal for determination, which I will set out when considering them.

4. For the reasons that follow, I am not satisfied that any of the Questions are “questions of law” for the purposes of s 5AE and accordingly I do not have the power to submit any of them to the Court of Criminal Appeal for determination.

5. On Questions 1-3 and 5-7 the prosecutor submitted in its written submissions (PWS) that the reason why the questions should be stated was that I was in error in the primary judgment on rulings on admissibility of evidence (see PWS [31] and [42]), on my findings of breach of duty (PWS [57] and [78]), in purportedly requiring the prosecutor to prove mens rea (PWS [93]) and in my application of the facts to the law when dealing with causation (PWS [102]). In relation to Question 4 the prosecutor submitted that by failing to deal with its particularised case I have engaged in a constructive failure to exercise my jurisdiction. The Questions put forward by the prosecutor seek to challenge almost every conclusion adverse to it in the primary judgment, including on the admission of evidence that I relied on to establish an element of the offence involving the Limited Partner, and fail to consider the impact of other adverse factual findings that render the Questions inutile.

6. Senior counsel for the prosecutor, frankly and appropriately accepted that the prosecutor’s intention in seeking to have Questions 1-7 was to correct errors of law I have made in the primary judgment. That approach amounts to seeking to invoke the s 5AE procedure as a surrogate right of appeal, which is not a permissible purpose of the procedure. That position is beyond doubt on the basis of recent Court of Criminal Appeal authority, which I will come to in some detail.

Relevant Law

7. There is no statutory right of appeal from an acquittal in respect of summary proceedings tried in the District Court: SafeWork NSW v BOC Ltd [2020] NSWCA 306 at [18]-[19] and [23] (Basten JA, Macfarlan JA and Leeming JA agreeing).

8. Section 5AE Criminal Appeal Act 1912 provides:

(1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction, the District Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination.

(2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit.

9. Section 5AE has been recently considered by the Court of Criminal Appeal in the context of summary work health and safety prosecutions under the Work Health and Safety Act 2011 (the Act), in Orr v Cobar Management Pty Ltd [2020] NSWCCA 220, Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 and Western Sydney Local Health District v SafeWork NSW [2024] NSWCCA 153 (WSLHD).

Orr v Cobar Management Pty Ltd [2020] NSWCCA 220

10. In Cobar Management, a five member bench of the Court of Criminal Appeal decided that the purpose of s 5AE is to facilitate the giving of advice to a first instance judge in order to enable the proper resolution of the issues in the proceedings and are “pure questions of law”, which have not been first determined by the primary judge, which do not involve questions of fact and whose character as a question of law can be recognised on the face of the question: [101]-[111] (Bathurst CJ and Bell P (as his Honour then was) with Johnson, Garling and Lonergan JJ agreeing).

11. In Cobar Management, the Court of Criminal Appeal decided that I did not have the power to state questions 2-7 in that case because the questions submitted were not questions of law for the purposes of s 5AE.

12. At [103] of Cobar Management, Bathurst CJ and Bell P cited with approval the observations of Simpson J (as her Honour then was) in Environmental Protection Authority of NSW v Goulburn Wool Scour Pty Ltd (2004) 137 LGERA 289 at 299 where she stated:

…s 5AE is designed to facilitate the giving of advice by this Court to a first instance judge in order to enable the proper resolution of the issues in the proceedings. It arises where proceedings are still on foot and enables the proper and just determination of those proceedings, according to law, and in the correct application of the law. Section 5AE is expressed to apply to proceedings that have not come to an end, and which may, therefore, themselves be resolved by the determination of the questions of law ...

13. At [106] of Cobar Management, Bathurst CJ and Bell P stated:

In terms, the purpose of s 5AE is for this Court to determine questions of law which have been submitted to it for determination. That language presupposes that those questions of law have not first been determined by the judge who submits the questions. This is consistent with the section not operating as a surrogate right of appeal. As Hunt J (with whom Grove and Allen JJ agreed) observed in Budget Nursery Pty Limited v Commissioner of Taxation (1989) 42 A Crim R 81 at 82:

"The purpose of the stated case procedure is not to provide an appeal after the judge has made his decision; the purpose is to provide him with assistance in coming to his decision."

14. The purpose of the s 5AE procedure is “to provide a facility whereby, if there is a difficult or unsettled question of law or a question of law as to which there are conflicting authorities or no clear authority, the judge hearing the matter may or, if the Crown requires, must submit such questions to the Court of Criminal Appeal”: [108] Cobar Management (Bathurst CJ and Bell P).

15. Bathurst CJ and Bell P continued at [109] of Cobar Management:

Those questions of law should be, in our opinion, what are sometimes described as “pure questions of law”. They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts. The construction accords with the cases we have referred to at [48] and [70] above.

16. At [48] of Cobar Management, Bathurst CJ and Bell P stated:

As was noted in Bass v Permanent Trustee Company Limited (1999) 198 CLR 334 at 358; [1999] HCA 9 at [52], some questions of law can be decided without any reference to the facts, or may proceed by reference to assumed facts. These are sometimes described as “pure questions of law”. This was the terminology used, for example, by Leeming and White JJA in strictly confining a grant of leave to appeal in Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2020] NSWCA 62 at [11]; see also Medical Council of New South Wales v Lee [2017] NSWCA 282 at [77]; and Violi v Commonwealth Bank of Australia [2015] NSWCA 152 at [66] and [125].

17. At [70] of Cobar Management, Bathurst CJ and Bell P stated:

In passages that were referred to with evident approval by Spigelman CJ in Attorney-General v X at [41] and [42], both Lee and Hunt JJ gave to the expression “any question of law” in s 5A(2) of the Criminal Appeal Act a narrow meaning, similar to the approach taken by Macrossan CJ in Lewis (see [50] above). Thus, in R v J at 616, Lee J said:

"The purpose of s 5A(2) is to provide a procedure whereby the court can pronounce upon a question of law raised that is or may be of importance in the conduct of criminal trials in this State. The mere fact that a trial judge has made an error of law will not be sufficient. The question of law raised should be one of substance, the significance of which to the criminal law does not come to an end when the trial in which it arose concludes."

At 626, Hunt J said to similar effect:

"There must be involved a question of sufficient substance as to justify the adoption of the procedure, and questions of transitory or minimal significance in relation to the criminal law generally or questions which do no more than establish the trial judge in the particular case made some error of law do not justify either argument before or decision by this Court pursuant to s 5A(2)."

Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39

18. In Hunter Quarries, Beech-Jones CJ at CL (as his Honour then was, Walton and Price JJ agreeing) at [2] recorded that the prosecutor contended that the primary judge had erred in applying the relevant statutory provisions to the facts, and stated, “… s 5AE is not a means of ventilating such complaints”.

19. At [14] his Honour stated, after referring to [109] of Cobar Management:

The description in Cobar Management of the form of question that may be posed as “pure question[s] of law” appears to be synonymous with the meaning of “a question of law alone” which is often the subject matter of appeals (see for example Crimes (Appeal and Review) Act 2001, s 52(1)). Such a question is one that must “be stated and considered separately from the facts with which it may be connected in a given case” (Williams v R [1986] HCA 88; (1986) 161 CLR 278 at 287; [1986] HCA 88 per Gibbs CJ, Wilson and Dawson JJ) and does not include a ground that involves a mixed question of fact and law such as an error in the application of a legal principle (R v PL [2009] NSWCCA 256 at [25] and [26] per Spigelman CJ; “PL (No 1)”). That said, whether or not a question submitted raises such a question is to be addressed as a matter of form not substance. For example, the questions that were submitted to this Court in NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252 at [13] were framed by the first instance judge in terms that commenced “Did I err in law in finding ...”. However, they were addressed by this Court at a level of principle and not by reference to the particular facts of the case. In any event the approach stated in Cobar Management, being a recent decision of a five-member Court, must be applied.

20. At [15] his Honour continued:

Fourth, even if a “question of law” is submitted, this Court nevertheless retains a discretion to decline to answer it (Cobar Management at [112] to [115] per Bathurst CJ and Bell P; with whom Johnson J at [128], Garling J at [136] and Lonergan J at [137] agreed). As for the scope of the discretion, Bathurst CJ and Bell P observed that the instances where that discretion may be exercised include “where the questions submitted are misconceived or proceed on a false basis, or where any answer would lack utility” or where “underpinning the question is an argument or contention that could have been, but was not, put in the course of the hearing, and the raising of it at a very late stage of the proceedings may work procedural unfairness or vexation or oppression on a defendant” (at [115]). Otherwise, s 5AE limits the Court to answering questions that arise at or in reference to the proceeding so that either, as a matter of power or discretion, this Court should decline to answer questions that do not so arise.

21. For illustrative purposes only, it should be noted that permissible questions answered by the Court of Criminal Appeal were questions involving whether “reasonable foreseeability”, a term not used in the Act, was a relevant factor to be taken into account in assessing breach of duty when considering if the pleaded measures were reasonably practicable under s 18 of the Act.

Western Sydney Local Health District v SafeWork NSW [2024] NSWCCA 153

22. In WSLHD the Court of Criminal Appeal decided that the question stated for determination by the primary judge, whilst appearing to be a question of statutory interpretation, was not question of law for the purpose of s 5EA because it could not be divorced from the facts of the case.

23. The Court stated at [22] of WSLHD:

…The question involves the application of legal principle to the particular facts sought to be advanced in this prosecution, and the particular limitations accompanying the defendant’s guilty plea, namely, whether the defendant’s plea disentitles the prosecution from establishing aspects of its particularised case to which the plea does not extend. The device of framing the question in terms of particulars which “would not eliminate the risk”, as opposed to particulars (c)(i)-(iii), (e), (g) and (h), does not alter its character as a question of mixed fact and law, which is necessarily confined to the application of principle to the particular case particularised in the further amended summons.

The prosecutor’s construction argument based on Environmental Protection Authority v Grafil Pty Ltd [2019] NSWCCA 174

24. For the sake of completeness, it is appropriate to deal with the prosecutor’s construction point, which is relevant to each of the Questions.

25. The prosecutor contended that the use of the word “must” in s 5AE obliged me to state questions of law submitted by the prosecutor unless they were so obviously frivolous and baseless that their submission would be an abuse of process: citing Environmental Protection Authority v Grafil Pty Ltd [2019] NSWCCA 174 at [81] (Preston CJ of LEC, Davies J and Adamson J (as her Honour then was) agreeing). And further, that the obligation of the trial judge to submit a question of law requested by the prosecutor is not dependent on the identification of any particular question of law, but only on the request: Grafil at [82]

26. The prosecutor submitted that the Court of Appeal’s failure to overrule Grafil meant that it was still good law on what constituted an appropriate question for the purposes of s 5AE.

27. For the reasons that follow, I do not accept that submission.

28. I accept that for the purposes of s 5AE that the prosecutor represents the Crown.

29. In Cobar Management, the respondent submitted that Grafil should not be followed on the issue of whether the proceedings had completed. The Court of Criminal Appeal decided that because no final orders had been made that the proceedings were not completed and that I had the power to submit questions of law pursuant to s 5AE and that Grafil should not be overruled: Cobar Management at [94]-[98] and [101] (Bathurst CJ and Bell P).

30. In Cobar Management, there was only one reference to Grafil on the issue of what was a question of law for the purposes of s 5AE. At [104]-[105] of Cobar Management, Bathurst CJ and Bell P stated:

104 A rather different purpose was attributed to s 5AE by Adamson J, sitting in the Court of Criminal Appeal, in Grafil. At [422], her Honour said:

"The mechanism provided for under s 5AE is that questions be asked and answered. The evident intent of s 5AE is for this Court to correct errors of law before orders, which would have the effect of completing the proceedings, are made by the judge.” (emphasis added).

Neither Preston CJ of LEC nor Davies J expressed agreement with Adamson J’s identification of the purpose of s 5AE of the Criminal Appeal Act.

105 In the present case, Cobar submitted that Adamson J’s identification of the purpose of s 5AE in Grafil was plainly wrong. With respect to her Honour, we do not agree that the “evident intent” of s 5AE is for the Court of Criminal Appeal to “correct errors of law”. It may well be that the “correction” of errors of law accurately describes the purpose of provisions such as s 669A of the Criminal Code (Qld) and its analogues which provide for the submission of points or questions of law following an acquittal (see, in this respect, Mellifont v Attorney General for the State of Queensland (1991) 173 CLR 289 at 304-305; [1991] HCA 53). There is a difference, however, in relation to a provision such as s 5AE where the reference or submission of question is to occur prior to the completion of proceedings.

31. The Court of Criminal Appeal in Cobar Management did not deal with what Preston CJ of LEC stated at [81]-[82] of Grafil.

32. The decisions of the Court of Criminal Appeal in Cobar Management, Hunter Quarries and WSLHD are unanimous, directly on point, relate to the Act and are prescriptive as what are appropriate questions of law for the purposes of s 5AE. Each of those decisions post-dates Grafil. I am clearly bound by those decisions and required to follow them. The decision in Cobar Management was made by a bench of five judges and contains some, but not complete, disapproval of Grafil on the relevant point and it must be followed: Hunter Quarries at [14].

33. On a close reading of Cobar Management there are further implied signs of disapproval of some of the statements in [81]-[82] of Grafil.

34. First, at [81] of Grafil, Preston CJ of LEC, cited Ex parte McGavin; Re Berne (1946) 46 SR (NSW) 58 at 61 (Jordan CJ, Maxwell agreeing) and Talay v R [2010] NSWCCA 308 at [11] which were both cases relating to s 5B Criminal Appeal Act 1912 that permits questions to be stated after the completion of the proceedings. At [105] of Cobar Management Bathurst CJ and Bell P made it clear that the purpose of s 5AE was different to the purpose of s 5B, and it follows that the authorities cited in [81] of Grafil were not decisive of the jurisdiction issue.

35. Second, the majority of the questions of law submitted to and answered by the Court of Criminal Appeal at [410] of Grafil, do not conform with the decision in Cobar Management that was applied in Hunter Quarries and WSLHD: see for example, questions 3-8 and 10-15.

36. Third, the decision in Cobar Management cannot stand with the propositions that a judge is under an obligation to submit all questions put forward by the prosecutor absent an abuse of process at [81] of Grafil and that the s 5AE process does not require the identification of a particular question of law at [82].

37. Fourth, the obligation enlivened by s 5AE contemplates a request in relation to a particular question of law. The trial judge has some role to play in formulating or refining the question, but unless some obvious and straightforward reformulation or refinement is apparent and sought in terms, it is not open to the prosecutor to go to the Court of Criminal Appeal and suggest that some other question might have been appropriately submitted: Director General Department of Trade and Investment Regional Infrastructure and Services v Glennies Creek Coal Management Pty Ltd (2013) 239 IR 343 at [43] (Basten JA, Ward JA (as her Honour then was) and Sackville AJA agreeing).

38. Finally, but to the contrary, I accept that the I have the power to refuse to submit questions of law to the Court of Criminal Appeal pursuant to s 5AE, if it would amount to an abuse of process as stated in [81] of Grafil. The District Court has an inherent power to control its own processes to prevent an abuse of process: Jago v District Court of New South Wales (1989) 168 CLR 23. This extends to refusing to submit questions to the Court of Criminal Appeal under s 5B Criminal Appeal Act 1912*,* that are so frivolous or baseless that their submission would amount to an abuse of process: Berne at 61 and Talay at [11]. I can see no reason in principle as to why a similar power would not exist in relation to s 5AE, and I accept that the statement to this effect at [81] of Grafil, still applies to this application.

39. For these reasons, I am satisfied that the decision in Cobar Management qualifies what is said in Grafil at [81]-[82] in two important respects:

(a) the Court’s power and thereby its obligation to submit questions of law to the Court of Criminal Appeal is subject to the requirement that the questions are questions of law for the purposes of s 5AE; and (b) the questions of law must be identified to determine if they are questions of law for the purposes of s 5AE.

Consideration

Question 1 – Where a person who is a defendant (‘the personal defendant’) in a prosecution under the Work Health and Safety Act 2011 (NSW) (‘WH&S Act’) is an agent or employee of a company or companies, which company or companies are co-defendants in a joint trial (‘the corporate defendants’) and the personal defendant does not give evidence, is the record of interview inadmissible against the corporate defendants because the co-defendants will be unable to cross-examine the personal defendant?

40. Question 1 seeks a review of my admissibility judgment delivered on 2 September 2024 to exclude Michael’s record of interview (ROI) on the basis that the probative value of the evidence was outweighed by the danger of unfair prejudice: SafeWork NSW v Pendle Ham & Bacon Curers Pty Ltd [2024] NSWDC 395 (AJ).

41. The applicable test to be applied on an appellate review of a decision pursuant to s 137 Evidence Act 1995, is the correctness standard: Moore v The King [2024] HCA 30. Accordingly, if my decision in the admissibility judgment was wrong, it is an error of law.

42. Question 1 is not a question of law for the purposes of s 5AE for the following reasons, any one of which is sufficient.

43. First, s 5AE does not provide a surrogate right of appeal, even on a question of law. The admitted purpose of Question 1 is to have the ROI ruled as admissible and for me to consider its content in reconsidering my factual findings.

44. Second, the exclusion of Michael’s ROI is a question of law that has already been determined by me.

45. Third, Question 1 cannot be determined without reference to the facts. A review of my decision in the admissibility judgment would involve the Court of Criminal Appeal making for itself, three evaluative assessments namely, the weight of the probative value of the evidence, the extent of any unfair prejudice, and then a comparison of one to the other: Moore at [18]. This would involve an assessment of facts.

46. Fourth, Question 1 is not of sufficient substance to justify the adoption of the s 5AE procedure. Any determination of admissibility of evidence is of limited precedential value, especially where the evidence is excluded under s 135 or s 137 Evidence Act 1995 the consideration of which is fact specific.

47. Finally, Question 1 does not arise at or in reference to the proceedings and/or is not necessary to enable a proper resolution of the issues. As pointed out at [31] AJ, no submission has ever been advanced as to how the answers in the ROI were relevant to the proof of gross negligence or recklessness. There were no questions or answers in the ROI directly on those issues. The balance of Michael’s ROI was imprecise as to which corporate defendant did what, and presented a confusion that was consistent with the evidence of other witnesses. The prosecutor has not sought to prove how its case was weakened by the exclusion of Michael’s ROI. At the time of the admissibility judgment, I concluded that the probative value of the evidence was limited. After having heard all of the evidence and being able to consider it as a whole, I would find that the probative value of the evidence was negligible. It remains to be explained how the admission of Michael’s ROI might change my conclusion on any issue.

Question 2 – Where a person on behalf of a person that is a director of a corporate defendant in a prosecution under the WH&S Act, has been required to answer, and does answer questions which the person was required to answer under s 155 of the Act, is a ‘revised’ set of answers of that person tendered by a defendant, admissible in the absence of the author of the revised set of answers giving evidence, and over the objection of the prosecutor?

48. Question 2 seeks a review of my decision to admit the revised answers of Charles and the corporate defendants that was dealt with as Issue 1 of the primary judgment at [41]-[74].

49. At the outset, it should be noted that Question 2 is based on a false premise and a misconception of my decision.

50. As to the false premise, the revised answers were signed by Charles on his own behalf and as a director of the corporate defendants. The revised answers in so far as they related to the corporate defendants were based on enquiries that Charles had made and information that he received from others including the Group’s accountant, Mr Flyak, and the Group’s lawyers. The critical difference between the original answers and the revised answers was a legal characterisation of which entity undertook tasks in the furtherance of the partnership business.

51. The revised answers were admitted provisionally as Exhibits 18-20 on 28 March 2024 and Charles was called to give evidence on that day. Most of the evidence led or challenged by counsel for the prosecutor from Charles related to the issue of the veracity of the revised answers. Charles was examined-in-chief by counsel for the prosecutor at T 274-330. Charles was then cross-examined by the prosecutor pursuant to s 38 Evidence Act 1995 at T 330-346. Charles was also re-examined by counsel for the prosecutor at T351-352. The suggestion implicit in Question 2 that there was an unidentified author of the revised answers who was not called to give evidence leading to some procedural unfairness, should be rejected.

52. As to the misconception, my decision to admit the revised answers was based on them being admissions made to an investigating official pursuant to s 85 Evidence Act 1995. I did not make any decision as to the scope of s 155 of the Act.

53. The applicable test to be applied on an appellate review of a decision pursuant to s 85 Evidence Act 1995, is the correctness standard.

54. Question 2 is not a question of law for the purposes of s 5AE for the following reasons, any one of which is sufficient.

55. First, s 5AE does not provide a surrogate right of appeal, even on a question of law. The admitted purpose of Question 2 is to have the revised answers excluded from the evidence considered by me.

56. Second, the admission of the revised answers is a question of law that has already been determined by me.

57. Third, Question 2 cannot be determined without reference to the facts. A review of my decision in Issue 1 would involve the Court of Criminal Appeal making evaluative assessments as to whether the revised answers were admissions made to an investigating official and if the truth of the admissions was adversely affected by the circumstances in which they were made.

58. Fourth, Question 2 is not of sufficient substance to justify the adoption of the s 5AE procedure. Any determination of admissibility of evidence is of limited precedential value, especially where the admission or exclusion of the evidence is based on the facts of the case.

59. Finally, Question 2 does not arise at or in reference to the proceedings and/or is not necessary to enable a proper resolution of the issues for the following reasons:

60. I relied on the revised answers in the primary judgment as admissions of the Limited Partner as the basis to conclude, as the prosecutor submitted, that the Limited Partner was a PCBU and that it owed a duty to the workers under ss 19(1) and 20 of the Act: [337]-[373] PJ. If the revised answers were to be inadmissible, it would not affect the outcome because the contemporaneous documents were entirely consistent with the revised answers: [67] PJ.

61. At [74] PJ, I stated that the prosecutor could rely on any of the original answers as an admission and that the provision of the revised answers did not have the effect of withdrawing any admission made in the original answers. This was the position that was put to the parties in final submissions and to how I would approach the revised answers: for example at T 576 lines 25-30 and T 626 lines 22-27. On 17 September 2024, I invited counsel for the prosecutor to identify the “smoking gun” in the original answers at a later time in writing. He did not take up that invitation.

62. The revised answers were just a piece of evidence to be considered in arriving at my findings of fact. At [67] PJ, I found that the revised answers were “entirely consistent with the contemporaneous documents establishing the limited partnership and the large volume of contemporaneous business records kept by the Group relating to the operation of the Shop and the Factory by the Partnership. This was not a case where a corporate defendant was trying to mould a case inconsistent with contemporaneous documents, but the exact opposite”.

Question 3 - In a case where two corporations conducted business as a limited partnership, and one of the corporations is a Limited Partner corporation, whose liability is limited by the partnership deed to an amount of the Limited Partner corporation’s liability in the Register, for that reason alone it is not reasonably practicable for the Limited Partner to take any of the pleaded measures to eliminate or minimise the risk to health and safety of a work in the business?

60. Question 3 relates to Issue 4 of the primary judgment at [374]-[446].

61. Question 3 fails to properly engage with my findings in the primary judgment on Issue 4 and does not arise from them.

62. The answer to Question 3 must be “No”, and that is consistent with my finding at [410] PJ, that the Limited Partner could not rely on the Partnership Deed to demonstrate that it was not reasonably practicable for it to take the pleaded measures.

63. A summary of my findings on Issue 4 of the primary judgment is as follows:

64. The limited liability of the Limited Partner was conferred by statute: s 60 Partnership Act 1**892 (the Partnership Act): [413] PJ.

65. The limited partnership was formed on the registration and not by entry into the Partnership Deed: ss 50A and 55A Partnership Act: [414] PJ.

66. The limited liability of the Limited Partner was conditional on it not taking part in the management of the partnership business and not having the power to bind the limited partnership: s 67 Partnership Act: [413] PJ.

67. The Limited Partner could not rely on the clauses of the Partnership Deed or the way that the partnership business was conducted, to contend that it was not reasonably practical for it to take the pleaded measures because it could not limit its duty under the Act by agreement or arrangement: s 16(3) of the Act: [410] PJ. An alternative way of reaching that conclusion was that the Limited Partner could not contract out of its duty under the Act: s 272 of the Act.

68. The Limited Partner was entitled to rely on the limited liability conferred by statute because it was not an agreement or arrangement referred to in s 16(3) of the Act: [417] PJ.

69. The prosecutor alleged the same pleaded measures against the General Partner and the Limited Partner, which did not take into account s 67 of the Partnership Act: [434]-[436] PJ.

70. It was not reasonably practical for the Limited Partner to take any of the pleaded measures because each of the pleaded measures required the Limited Partner to act in a way that would bind the limited partnership or that would involve taking part in the management of the partnership business, and if the Limited Partner did so that would be in breach of s 67 of the Partnership Act and lose its limited liability: [439] and [441]-[443] PJ.

71. Question 3 is not a question of law for the purposes of s 5AE for the following reasons, any one of which is sufficient.

72. First, Question 3 is not of sufficient substance to justify the adoption of the s 5AE procedure. This is the first, and only case that I could find, with the assistance of the parties, involving the prosecution of the partners of a limited partnership under the Act, or any law. These cases are incredibly rare and the misconceived and/or misleadingly selective nature of Question 3 which ignores the relevant provisions of the Partnership Act renders it inutile and of little to no significance to the criminal law.

73. Second, Question 3 does not arise at or in reference to the proceedings and/or is not necessary to enable a proper resolution of the issues. For the reasons given at [63] above, Question 3 does not arise from my findings on Issue 4 of the primary judgment. Further, my decision on Issue 4 of the primary judgment is consistent with the proposition sought to be advanced by the prosecutor in Question 3, that the provisions of the Partnership Deed were not conclusive of Issue 4.

Question 4 - When a judge is trying a prosecution for breach of duty is owed to a worker under the WH&S Act, is the judge required to determine whether or not the prosecution has established each of the particularised breaches of the Act?

67. Question 4 relates to my consideration of the various issues in the primary judgment.

68. The prosecutor contends that I failed to deal with the prosecutor’s allegations relating to:

(a) the corporate defendants, in a table that is Attachment A to this judgment; and (b) Michael, in a table that is Attachment B to this judgment.

69. The prosecutor contends that by failing to address material parts of the case, that there has been a constructive failure to exercise the jurisdiction. This submission is made on the basis of a very oversimplified recitation of the law in the PWS.

70. There is no legal controversy relating to Question 4. The answer to Question 4 must be “Yes, subject to the circumstances of the case”, for example if the particulars were oppressive and amounted to an abuse of process: Jago at 74.

71. The law is that a failure to address a substantial and clearly articulated argument can amount to a constructive failure to exercise jurisdiction: Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209 at [22]-[24] (Kirk JA, White and Mitchelmore JJA agreeing). The ability to seek relief against an inferior court for a constructive failure to exercise jurisdiction lies in judicial review for jurisdictional error in the Supreme Court: Kirk v Industrial Court of New South Wales (NSW) (2010) 239 CLR 531 at [97]-[100]. It is not appellable error.

72. A mistake on the part of an inferior court entrusted with authority to identify, formulate and determine issues and questions in a case will not ordinarily constitute jurisdictional error: Ming at [45].

73. Closely aligned with a constructive failure to exercise jurisdiction is a failure to give adequate reasons, which can be appellable error, to the extent that an appeal exists: Ming at [10].

74. The requirement to give adequate reasons depends on the nature of the case and is the subject of well-settled authority, including for example: Mifsud v Campbell (1991) 21 NSWLR 725 at 728C-F (Samuels JA, Clarke JA and Hope AJA agreeing) and Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 443-444 (Meagher J).

75. The prosecutor’s complaints underlying Question 4 is that I failed to deal with its particularised case.

76. An option available to the prosecutor to deal with those complaints was to ask me to determine any matters that it says were not dealt with in the primary judgment: BOC at [67] (Leeming JA).

77. Since I handed down the primary judgment on 17 March 2025, there has been no request from the prosecutor applying for a determination of any matters that it says were not dealt with.

78. On 19 September 2025, when the s 5AE issue was argued, I invited the prosecutor to consider if it wanted me to address any matter properly raised in Attachments A and B, and to provide further reasons on those matters.

79. The prosecutor sought seven days to consider its position and to get instructions.

80. On 26 September 2025 the prosecutor advised that it did not want me to address the matters raised in Attachments A and B, because it would be impermissible for me to make any substantive change to my decision, incorrectly citing Lam v Beesley (1992) 7 WAR 88 and Todorovic v Moussa (2001) 53 NSWLR 463 as applicable authorities.

81. Question 4 is not a question of law for the purpose of s 5AE for the following reasons, any one of which is sufficient.

82. First, the argument that I have constructively failed to exercise my jurisdiction is only relevant to an application for judicial review of my decision, which has not been sought by the prosecutor. Even if it had been, the failure of the prosecutor to ask me to deal with the matters it says I failed to deal with, substantially weakens any application it could make on that basis: BOC at [67].

83. Second, s 5AE does not provide a surrogate right of appeal, including on a failure to give adequate reasons, whether that error is a question of law or a question of fact.

84. Third, Question 4 does not arise at or in reference to the proceedings and/or is not necessary to enable a proper resolution of the issues. An affirmative answer to Question 4 would achieve no more than what the prosecutor is entitled to request of me before the making of final orders, that is, to reconsider my decision and to provide further reasons to deal with any properly raised matter that I have failed to consider in the primary judgment: see Cobar Management at [100] and BOC at [67].

Question 5 - In a prosecution for a breach of the duty of a person conducting a business or undertaking for the breach of duty under ss 19 or 20, or both, of the WH&S Act, does the fact that a judge finds there were measures which were not taken, but which if taken could have eliminated the risk of death or serious injury (‘elimination measures’), and if the judge finds that there were other measures which would have reduced but not eliminated that risk (‘minimisation measures’), but were not taken, mean that the failure to implement those minimisation measures is not a breach of the duty?

85. Question 5 relates to Issue 5 of the primary judgment at [447]-[508].

86. At the heart of Question 5 is an attempt to review my factual findings that:

(a) the conduct of an adequate risk assessment together (see [476]-[485] PJ) with the admitted steps, were steps that would have eliminated the pleaded risks; and (b) the further steps did not amount to a breach of duty because they were as a matter of fact, not reasonably practicable: [463]-[475] and [486]-[506] PJ.

87. At [73] PWS, the prosecutor speculates that I may have interpreted s 17 of the Act to mean that “there was no duty on the defendant to take steps which would merely minimise those risks”. There is no support for that speculation in the primary judgment.

88. To the contrary, I set out s 17 of the Act at [191] and referred to it at [201] PJ. I set out the law relating to what is reasonably practicable at [202]-[223] PJ.

89. The answer to Question 5 must be “No” and this was authoritatively determined in WSLHD.

90. Question 5 is not a question of law for the purposes of s 5AE for the following reasons, any one of which is sufficient.

91. First, s 5AE does not provide a surrogate right of appeal. The admitted purpose of Question 5 is to seek a review of my factual findings as to breach of duty.

92. Second, even if support could be found in the primary judgment for the speculative proposition set out at [87] above, this would amount to an error of law on an issue that has already been determined by me.

93. Third, the relevant findings relating to Question 5 are findings of fact or mixed findings of fact and law: WSLHD at [22].

94. Fourth, Question 5 cannot be determined without reference to the facts. Question 5 involves the application of legal principle to the particular facts sought to be advanced by the prosecutor: WSLHD at [22]-[23].

95. Fifth, if I am wrong in my characterisation of the findings as findings of fact or mixed findings of fact and law in [93] above, the relevant questions of law have already been determined by me in Issue 5 of the primary judgment.

96. Finally, Question 5 does not arise at or in reference to the proceedings and/or is not necessary to enable a proper resolution of the issues. There is no controversy in the law on this point and it has been authoritatively decided by WSLHD. The factual contentions that the prosecutor pursued in final submissions and that it seeks to reagitate through Question 5 were contrary to the evidence of its own expert, Inspector Kent, that I accepted: [461] PJ.

Question 6 - Does a charge against a worker failing to comply with a health and safety duty (under ss 28(b) and 32 of the WH&S Act) require proof of the knowledge or belief of the worker?

97. Question 6 relates to Issue 7 of the primary judgment at [522]-[581].

98. The prosecutor correctly contends that the s 32 offence was an offence of strict liability and that the prosecutor is not required to prove mens rea. So much is apparent from [186] PJ that quotes s 12A of the Act.

99. There is no controversy in the law on this point and no complaint that I misstated the law. The answer to Question 6 must be “No”.

100. The prosecutor submits that my findings of fact that Michael did not have actual knowledge of the guidance material or the pleaded measures relied on by the prosecutor amounted to a finding that the prosecutor was required to prove what Michael actually knew or believed.

101. The PWS on Question 6 relied on a misleading selection of my reasons by failing to refer to my findings as to what Michael as a worker, ought to have known, which follow the findings on actual knowledge.

102. Question 6 is not a question of law for the purposes of s 5AE for the following reasons, any one of which is sufficient.

103. First, s 5AE does not provide a surrogate right of appeal, if I have misstated the law or misapplied the law to the facts: Hunter Quarries at [2].

104. Second, Question 6 does not arise at or in reference to the proceedings and/or is not necessary to enable a proper resolution of the issues. For the reasons given, Question 6 does not arise from the determination of Issue 7 of the primary judgment. Further, it was common ground in final submissions that my decision in SafeWork NSW v Scharfe [2021] NSWDC 260 set out a correct statement of the relevant principles as recorded at [253] PJ. To allow the prosecutor to pursue the contention underlying Question 6 would amount to the prosecutor changing its case after I have published reasons for my decision.

Question 7 - In a prosecution of the defendant worker under ss 28(b) and 32 of the WH&S Act, is the prosecution required to prove that the breach of duty alleged, was a cause of the death or serious injury to another person, in order for the prosecution to prove its case against the defendant?

105. Question 7 relates to my decision on causation in Issue 8 of the primary judgment at [582]-[590], although the PWS refer to an error in assessing Michael’s breach of duty. The prosecutor’s submissions on Question 7 are inconsistent and confusing.

106. There was some difference between the PWS and what was put in oral argument on Question 7. For the reasons that follow, neither of the arguments support the submission of Question 7.

107. I will deal with the argument in the PWS first.

108. There is no controversy on the law relating to Question 7 and the answer to it must be “No”. The prosecutor relied on incontrovertible statements of principle to the effect that a breach of duty can occur without the need for an accident causing injury or death, which I referenced at [200] PJ.

109. No challenge has been made by the prosecutor as to the principles of causation set out at [277]-[280] PJ.

110. The prosecutor contended that my reasoning that I could not be satisfied of the mechanics of Mr Shanmugalingam’s fall amounted to a finding that I could not be satisfied that Michael had breached his s 28(b) duty, and that this was hindsight reasoning relating to breach, and therefore contrary to law.

111. It was not exposed in the PWS or orally as to how my findings relating to causation on Issue 8 of the primary judgment, were to be considered as findings relating to breach of duty.

112. My relevant findings as to breach are at [559]-[567] PJ. Those findings on Issue 7 of the primary judgment were made prospectively and without reference to Mr Shanmugalingam’s fall.

113. In contrast, my findings on causation in Issue 8 of the primary judgment were “a backward-looking analysis of what actually occurred in order to attribute liability for a criminal offence: Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288 at [226] (Cavanagh J)”: [280] PJ.

114. The oral submissions of the prosecutor included:

(a) a complaint that I failed to take into account all of Michael’s alleged failures in coming to a decision on causation; and (b) a faint submission that the established case law to the effect that causation is an element of a s 32 offence and to be determined by reference to Grasso is wrong, or at least in some doubt.

115. As to the first oral submission, in so far as I understand it, it was submitted that I failed to consider all of the alleged breaches of duty relating to Michael when determining causation. This submission misunderstands the requirements of s 32 of the Act. It is only the established breaches of duty considered individually or in combination that constitute a person’s failure to comply with their duty. If the pleaded measures of breach of the kind referred to in Kirk at [37] have not been proved beyond reasonable doubt, then they form no part of a person’s breach of duty. To suggest that the Court must consider the pleaded measures that have not been proved beyond reasonable doubt when considering causation would amount to accepting the proof of an element of the offence, namely breach of duty, to a standard less than beyond reasonable doubt.

116. I do not see how the first oral submission arises from Question 7, other than it purportedly relates to the issue of causation.

117. As to the second submission, the prosecutor suggested that causation was not an element of the offence and that the backwards looking analysis was wrong in principle. I am bound by the Court of Criminal Appeal decisions in Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338 at [127], Grasso and Saunders Civilbuild Pty Ltd v SafeWork NSW [2023] NSWCCA 261 at [171]-[175]. The prosecutor has not provided any intermediate appellate court decisions that bring these decisions into question.

118. I do not see how the second oral submission arises from Question 7, other than it purportedly relates to the issue of causation.

119. Question 7 is not a question of law for the purposes of s 5AE for the following reasons, any one of which is sufficient.

120. First, there is no controversy in the law relating to Question 7.

121. Second, s 5AE does not provide a surrogate right of appeal, if I have misapplied the law to the facts as contended by the prosecutor: Hunter Quarries at [2].

122. Third, Question 7 does not arise at or in reference to the proceedings and/or is not necessary to enable a proper resolution of the issues. There is no controversy in the law and a negative answer to Question 7 will not assist me to determine the issue of causation. Further, at the heart of my finding on causation relating to Michael, is a finding that I could not be satisfied on the evidence that the prosecutor had proved an element of the s 32 offence that Michael’s breach of duty by failing to direct the erection of a temporary exclusion zone using barrier tape and plastic bollards was a significant or substantial cause of Mr Shanmugalingam’s exposure to the risk. This finding was made on two factual bases. First, I was not satisfied that a temporary exclusion zone in the available space would have minimised Mr Shanmugalingam being exposed to the risk, when I did not know how he came into contact with the skylight. And second, that the failure to install a protective cover over the skylight was the overwhelming cause of Mr Shanmugalingam’s exposure to the risk and Michael’s breach was not a significant or substantial cause.

Orders

123. The orders I make are as follows:

124. The questions 1-7 proposed by the prosecutor are not questions of law for the purposes of s 5AE Criminal Appeal Act 1912 and I do not have the power to state them to the Court of Criminal Appeal for determination.

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Attachments A and B (248 KB, pdf)

Amendments

03 October 2025

Attachments A and B included

07 October 2025

[6] the word appellant changed to "prosecutor"

07 October 2025

Completed citation on cover sheet - Environmental Protection Authority of NSW v Goulburn Wool Scour Pty Ltd (2004) 137 LGERA 289