SafeWork NSW v Pendle Ham & Bacon Pty Ltd (No 3)

Hearing dates: 2 December 2025; 17 December 2025 and 6 February 2026 (written submissions on costs)

Date of orders: 24 February 2026

Decision date: 24 February 2026

Jurisdiction: Criminal

Before: Scotting DCJ

Decision: Penalty – The General Partner
1 Pendle Ham & Bacon Pty Ltd is convicted.
2 The appropriate fine for the s 32 offence relating to the breach of s 19(1) of the Act is one of $300,000 which will be reduced by 10% to reflect the plea of guilty, resulting in a fine of $270,000. I impose a fine of $270,000.
3 The appropriate fine for the s 32 offence relating to the breach of s 20 of the Act is one of $250,000 which will be reduced by 5% to reflect the plea of guilty, resulting in a fine of $237,500. Having regard to totality and the considerable overlap of criminality in the two offences, it is appropriate to further reduce the fine for the offence. I impose a fine of $50,000.
4 The total amount of fines imposed for both offences is $320,000.
Penalty – The Labour Hire Company
5 PHBC LH Pty Ltd is convicted.
6 The appropriate fine is one of $300,000 which will be reduced by 10% to reflect the plea of guilty.
7 I impose a fine of $270,000.
8 I order pursuant to section 122(2) Fines Act 1996 that 50% of the fines imposed, is to be paid to the prosecutor.
9 I order that the prosecutor is to pay 80% of the defendants’ costs in each proceeding.

Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to worker
SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty
SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities
OTHER – fall from height
COSTS – Party/Party – Criminal cases – Costs in summary proceedings – Statutory power to award costs – Whether it is just and reasonable to award costs

Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Fines Act 1996
Legal Profession Uniform Law Application Act 2014
Partnership Act 1892 (NSW)
Work Health and Safety Act 2011
District Court Rules

Cases Cited: Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495
Angor Pty Ltd v Ilich Motor Company Pty Ltd (1992) 37 FCR 65
Backhouse v Judd [1925] SASR 395
Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37
Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338
Grundmann v Georgeson [2000] QCA 394
Jahandideh v R [2014] NSWCCA 178
James v Surf Rd Nominees Pty Ltd [No 2] [2005] NSWCA 296
Latoudis v Casey (1990) 170 CLR 534
Morrison v Defence Maritime Services Pty Ltd (2007) 156 LGERA 365
Noye v Robbins [2010] WASCA 83
Pearce v The Queen (1998) 194 CLR 610
Pryles & Defteros (a firm) v Green (1999) 20 WAR 541
R v Borkowski (2009) 195 A Crim R 1
R v Thangavelautham [2016] NSWCCA 141
R v Thomson & Houlton (2000) 49 NSWLR 383
R v Youkhana [2004] NSWCCA 412
SafeWork NSW v Pendle Ham & Bacon Pty Ltd [2025] NSWDC 63
SafeWork NSW v Pendle Ham & Bacon Pty Ltd (No 2) [2025] NSWDC 399
Shaw v Yarranova Pty Ltd [2011] VSCA 55
Wilmott v Barber (1881) 17 CH D 772

Texts Cited: NSW Government Code of Practice: How to manage work health and safety risks, August 2019
SafeWork Australia – Safe work on roofs: Information Sheet, January 2016
SafeWork NSW – Code of Practice: Managing the risks of falls at workplaces, August 2019
SafeWork NSW – Falls through skylights and plastic roof sheeting Safety Alert, 14 September 2018
SafeWork NSW – Incident Information Release: More workers falling through roofs in NSW, 4 August 2020
WorkCover NSW – Safe Work on Roofs – Part 1 Commercial and Industrial Buildings, Code of Practice 2009

Category: Sentence

Parties: Proceedings 2023/160857 and 2023/160834
SafeWork NSW (Prosecutor)
Pendle Ham and Bacon Pty Ltd (Defendant)
Proceedings 2023/160882
SafeWork NSW (Prosecutor)
PHBC LH Pty Ltd (Defendant)

Representation: Counsel:
B Docking (Prosecutor)
M Shume (Defendants)
Solicitors:
Department of Customer Service (Prosecutor)
Hall & Willcox (Defendants)

File Number(s): Pendle Ham and Bacon Pty Ltd - 2023/160857
Pendle Ham and Bacon Pty Ltd - 2023/160834
PHBC LH Pty Ltd - 2023/160882

Publication restriction: None

Judgment

Introduction

1. Pendle Ham & Bacon Pty Ltd (the General Partner) appears for sentence after pleading guilty to the following offences contrary to s 32 Work Health and Safety Act 2011 (the Act):

(a) that as a person with a health and safety duty under s 19(1) of the Act, it breached its duty and exposed Vinoth Shanmugalingam, Thavasthasan Ponnuthurai and Sedhurajan Velusamy (the workers) to a risk of death or serious injury; and (b) that as a person with a health and safety duty under s 20 of the Act, it breached its duty and exposed the workers to a risk of death or serious injury.

2. PHBC LH Pty Ltd (the Labour Hire Company) appears for sentence after pleading guilty to an offence contrary to s 32 of the Act that as a person with a health and safety duty under s 19(1) of the Act, it breached its duty and exposed the workers to a risk of death or serious injury.

3. The maximum penalty for each of the s 32 offences is a fine of $1,766,130 (17,315 penalty units).

Facts

4. The full facts of the incident on 22 May 2021 are set out in my earlier judgment SafeWork NSW v Pendle Ham & Bacon Pty Ltd [2025] NSWDC 63 (the primary judgment). What follows is a summary of the facts set out in the primary judgment to permit an understanding of the sentences imposed. This judgment assumes familiarity with the facts found in the primary judgment and I will use the same defined terms.

5. The Zammit family controls a number of companies and trusts that operate a vertically integrated business in the meat and smallgoods industry, which I will refer to as the Pendle Ham & Bacon Group (the Group). The Group raises livestock which it processes at its abattoir, smallgoods factory and pet food factory, into meat, smallgoods and pet food that are sold on a wholesale basis and on a retail basis to consumers from the Pendle Hill Meat Market at 142 Bungaree Road, Pendle Hill (the Shop).

6. The Shop was part of a business operated by the Pendle Ham & Bacon Curers Partnership (the Partnership). The Partnership is a limited partnership that operates a business producing and selling meat and smallgoods products. The Partnership consists of the General Partner with a 1% interest and Pendle Ham & Bacon Curers Pty Ltd (the Limited Partner) holds a 99% interest. The Shop business includes the retail premises at 142 Bungaree Road, Pendle Hill and the smallgoods factory (the Factory) that operates from a building next door to the Shop at 138 Bungaree Road, Pendle Hill.

7. The workers were employed by the Labour Hire Company and assigned to work for the General Partner, that had control of the systems of work.

8. On 22 May 2021 the workers were instructed to clean solar panels installed on the roof of the Shop. The workers were instructed to work between the rows of solar panels on the roof, not to go within 2m of the edge of the roof and not to go near the skylights because the perspex covers would not support their weight. Mr Sithiravel (Jayanthan) supervised the workers for a period of time before attending to other duties. He later checked on them and was satisfied that they were following the instructions that he had given them. Before taking lunch, the workers cleaned the northern solar panels without incident. At about 1.30pm, Mr Shanmugalingam fell through a skylight on the southern side of the roof of the Shop about 8m to the concrete floor.

9. Mr Shanmugalingam suffered very serious head and traumatic brain injuries. He was taken to hospital by ambulance and remained in Intensive Care until 12 October 2021. He cannot recall any details of the incident. He has returned to Sri Lanka and continues to be cared for in a hospital because he requires high levels of support.

10. Prior to the incident, there was an induction booklet and policy booklet provided to workers on commencement of employment. It did not refer to the task of cleaning the solar panels. The General Partner and the Labour Hire Company did not have a documented system of work in place at the time of the incident for the task of cleaning the solar panels or a documented risk assessment for the task. The officers of the General Partner and the Labour Hire Company were unaware of the guidance material prior to the incident.

11. Immediately prior to the incident, the relevant published guidance material included:

(a) WorkCover NSW – Safe Work on Roofs – Part 1 Commercial and Industrial Buildings, Code of Practice 2009 (the Roofs Code); (b) SafeWork Australia – Safe work on roofs: Information Sheet, January 2016; (c) SafeWork NSW – Falls through skylights and plastic roof sheeting Safety Alert, 14 September 2018; (d) SafeWork NSW – Code of Practice: Managing the risks of falls at workplaces, August 2019 (the Falls Code); (e) NSW Government Code of Practice: How to manage work health and safety risks, August 2019 (the Risks Code); and (f) SafeWork NSW – Incident Information Release: More workers falling through roofs in NSW, 4 August 2020.

12. The officers of the General Partner and the Labour Hire Company were unaware of the guidance material prior to the incident.

13. The General Partner and the Labour Hire Company conceded that each of them, in breach of the s 19(1) duty owed to the workers, failed to take the following reasonably practicable steps:

(a) prohibiting and/or preventing one or more of the workers from working on the roof of the commercial building given that there were no permanent protective covers over the skylights and no permanent edge protection at the roof edge; (b) providing permanent protective covers over the skylights (or requiring them to be provided by the General Partner in the case of the Labour Hire Company); and (c) providing permanent protective edge protection to the roof (or requiring it to be provided by the General Partner in the case of the Labour Hire Company).

14. It was further conceded by the General Partner that in breach of its s 20 duty that it failed to take the reasonably practicable steps set out in [13](a)-(c).

15. In the primary judgment I was satisfied beyond reasonable doubt for the reasons given at [476] to [485], that the General Partner and the Labour Hire Company should have also conducted an adequate risk assessment as a reasonably practical step.

16. Immediately after the incident the General Partner took and paid for the following steps:

17. Safe Work Procedures were reviewed and updated and a Safe Work Method Statement (SWMS) was prepared for the task of cleaning the solar panels and working at height.

18. The managers received refresher training on their responsibilities relating to safety.

19. Access to the roof of the Shop was restricted to authorised personnel, who had been trained on relevant SWMSs. The access door was locked and the code provided to authorised workers through a permit system.

20. An external consultant, Commercial Safety Assurance Pty Ltd (CSA) was engaged to review WHS policies and systems.

21. Permanent galvanised sheet metal covers were installed over the skylights, at a total cost of $1,358.50.

22. An external consultant, Skyhooks Difficult Access Team Pty Ltd (Skyhooks) was engaged to install a permanent guardrail around the edge of the roof and anchor points on the roof. Skyhooks also provided harnesses and developed a height safety system protocol.

The Offenders’ Case on Sentence

17. The offenders relied on the affidavit of Charles Anthony Zammit (Charles) sworn on 10 June 2025. The following is a precis of his evidence. I will try not to repeat matters already referred to.

18. Charles is a director of the General Partner, Labour Hire Company and Limited Partner. His son, Jason Zammit (Jason), is the other director of these three entities. He has been a director of the General Partner since 25 March 2015 and a director of the Labour Hire Company since 15 December 2006.

19. Charles is the ultimate decision maker when it comes to any significant financial decisions made by the General Partner and Labour Hire Company.

20. On behalf of the offenders and personally Charles expressed deep regret and sorrow for the incident. The offenders acknowledged that they could have done more to prevent the incident and to ensure a safe work environment. The offenders take responsibility for the injury and pain suffered by Mr Shanmugalingam and his family**.**

21. Charles deposed that Mr Shanmugalingam's injury has had a profound impact on his team, but they know it is minor compared to the impact on Mr Shanmugalingam and his family. He deposed that as a business, they are committed to ensure that such incident does not occur again by continuing to invest in improving their safety protocols and fostering a culture of safety and responsibility within the business. He further stated that a lot of work has already been done and that they will continue to ensure the safety of all of the team members.

22. Shortly after the incident the General Partner engaged Drake Support Services to provide counselling to the workers who were affected by the incident.

23. As of 9 June 2025, approximately 200 employees of the Labour Hire Company were placed with the General Partner to work in the Shop business.

24. Charles deposed that each of the managers received training to ensure they could adequately supervise the safe operation of the work conducted in their area of responsibility. None of the managers had been trained to do work on the roofs, in particular cleaning of solar panels because it was not a core part of the work of any company in the Group.

25. The safety system that the offenders had in place at the time of the incident included the following:

(a) an induction booklet and policy booklet were provided to workers upon commencement of their employment. The induction booklet included a “General Health & Safety” section; (b) an Occupational Health and Safety Committee met at least every three months to discuss work health and safety (WHS) updates and incidents; (c) independent consultant, CSA provided WHS services to the Group including:

(i) preparation of various Standard Operating Procedures (SOPs) and Safe Work Method Statements (SWMS); (ii) conducting WHS training for managers and workers at the Shop; and (iii) assisting the Group’s transition of all WHS material to an online portal for better accessibility.

(d) placement of relevant signage around the Shop and Factory alerting individuals to the risks and/or hazards; (e) use of incident notification forms, which were reviewed by CSA representatives to ensure all corrective actions were implemented; (f) monthly hazard inspections by managers; (g) publication of WHS information, including first-aid workers and fire plans on noticeboards; and (h) supply of personal protective equipment including hi-vis uniforms, mesh gloves, steel cap boots and earmuffs.

26. Charles deposed that he spoke to managers and workers on a daily basis and any significant safety issues were usually brought to his attention since he had the ultimate decision-making power. He further deposed that he always encouraged managers and workers to raise any health and safety issues.

27. Charles stated that there was no budget allocated to safety. If a safety issue was observed or raised by a manager or worker, the General Partner allocated sufficient resources subject to his approval.

28. Charles accepted that there were gaps in the safety systems provided by the General Partner and the Labour Hire Company.

29. The task of cleaning solar panels occurred infrequently, and the incident did not occur in the ordinary part of the General Partner's or the Labour Hire Company's business. Charles accepted that insufficient attention had been given to the risks associated with this infrequently performed task prior to the incident.

30. Charles deposed that he was unaware of any prior falls from height incident within the corporate defendants. There are no records of any such event prior to the incident.

31. After the incident, Charles deposed that the offenders made every effort to cooperate with the investigation by SafeWork, and the Police documents and/or information were produced whenever requested by SafeWork including:

(a) responding to questions sought by SafeWork under s 155 of the Act; (b) making various relevant parties and employees available for interviews with SafeWork; and (c) allowing access to the Shop premises and assisting SafeWork during various site visits.

32. Charles noted that he had to correct some answers that were provided to SafeWork by himself and the Labour Hire Company. At the time of providing those answers he was of the belief that what he provided were accurate but he did not understand the intricacies of the way the offenders had been set up.

33. Charles further deposed that the offenders fully cooperated with Mr Shanmugalingam's medical team and have been kept informed of his recovery through their insurer, EML. The last contact with EML regarding Mr Shanmugalingam was in early February 2025.

34. Charles deposed that following the incident, the General Partner has invested significantly in improving the WHS of the Shop business as set out in [16]. The Labour Hire Company has also invested in improving the WHS of its systems of work, including hiring a WHS manager who provides services to the Group.

35. Charles stated that the General Partner has made donations to the community over a period of years including:

(a) donating a $100 meat tray to Seven Hills Public School; (b) donating a $100 meat tray to Toongabbie Public School; (c) donating a $100 meat tray to Pendle Hill Public School; (d) donating a $100 meat tray to Darcy Road Public School; (e) donating $200 worth of sausages to Westmead Children's Hospital; (f) donating a $100 meat tray to the Pendle Hill local bowling club; and (g) donating a $250 gift card to the Maltese community.

36. Prior to the incident the General Partner and the Labour Hire Company had not been prosecuted for any breach of WHS legislation.

Consideration

37. I have had regard to the objects of the Act set out in s 3 and the purposes of sentencing set out in section 3A Crimes *(*Sentencing Procedure) Act 1999.

Objective Seriousness

38. The offences involve some objective gravity.

39. The General Partner had control of the system of work and was responsible for providing safety instructions to the workers. The General Partner had the management and control of the Shop, including the roof of the Shop. It had installed the solar panels on the roof of the Shop.

40. The Labour Hire Company employed the workers and placed them to work for the General Partner. At the time of the incident about 200 workers were employed by the Labour Hire Company and placed to work in the Shop business, which included the operation of the Factory. The Labour Hire Company had the ability to train the workers and to control in what circumstances they were deployed by the General Partner.

41. The risks of workers falling off the roof or through the skylight covers when cleaning the solar panels were known to the General Partner. The Labour Hire Company should have been aware of the risks.

42. The likelihood of the risks coming home were low, but the consequences included a risk of death. The risk of falling off the roof was lower than the risk of falling through a skylight. Three workers were exposed to the risk of serious injury or death on the day of the incident.

43. The duties that the General Partner had to comply with under ss 19(1) and 20(2) of the Act were separate but overlapping. They could have been complied with by implementing the same control measures. The General Partner admitted by its pleas of guilty to the s 32 offences that it should have provided a permanent protective cover over the skylights and permanent edge protection to the edge of the roof. The first of those measures was a simple and inexpensive measure. The second was well known through the relevant guidance material but was costly, especially where the task of cleaning the solar panels took place infrequently. However, the General Partner accepted by its plea that the costs incurred was not grossly disproportionate to the risk. This acceptance was a significant admission against the General Partner’s interests. In addition, the General Partner should have conducted an adequate risk assessment before the task was undertaken to identify the risks and respond to them by implementing the appropriate control measures. In the primary judgment I found that this was an indispensable anterior step to the admitted steps, but the conduct of a risk assessment by itself would not have had a demonstrable impact on safety unless the identified control measures were implemented. In all the circumstances, the establishment of the risk assessment particular does not significantly increase the objective seriousness of the offences committed by the General Partner.

44. The Labour Hire Company admitted by its plea that it should have prevented the workers from working on the roof until the permanent covers and permanent edge protection were installed. The Labour Hire Company should also have undertaken a risk assessment. Each of the steps required to be undertaken by the Labour Hire Company were simple and inexpensive to implement. The comments made in [43] above relating to the risk assessment particular are equally applicable to the Labour Hire Company, without repeating them here.

45. The incident occurred in relation to work that was not a core part of the work of the Group. I am satisfied on the evidence that the offenders had systems in place to ensure that the health and safety of the workers engaged in the Shop business in that core work.

46. The injuries suffered by Mr Shanmugalingam were very serious. On the latest information available, he is highly dependent on others to provide care for him and to assist him with his activities of daily life.

47. There is significant overlap in the criminality involved in the offences committed by the General Partner. The control measures that should have been taken by the General Partner as the person in control of the work and the person with control of the premises are identical.

48. I have taken into account the maximum penalty for the offences.

Deterrence

49. The penalty imposed in relation to the offences must provide for general deterrence. PCBUs must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large businesses will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180].

50. There is some need for specific deterrence in the penalty imposed for the General Partner that continues to direct the work of a large number of workers in the Shop business, which incorporates some inherently dangerous work including butchery and the operation of machinery. The same reasoning applies to the Labour Hire Company, that continues to place a large number of workers with the General Partner. On the other hand, the Shop business has operated for an extended period without incident.

Aggravating factors

51. The injury, loss and damage caused by the offence was substantial: s 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require an injury to be sustained but only the creation of a risk. The injuries sustained by Mr Shanmugalingam were very serious. He has been left with significant disabilities and highly dependent on others for care and assistance with his activities of daily living.

Mitigating factors

52. The offenders do not have a record of prior convictions: s 21A(3)(e) Crimes *(*Sentencing Procedure) Act 1999. The General Partner was only incorporated in 2015, but at that time it took over a business that has been continually operating since about 5 April 1974. The Labour Hire Company was incorporated in 2015 to provide labour to companies within the Group and as part of the business structure adopted at that time.

53. The offenders have good prospects of rehabilitation: s 21A(3)(h) Crimes *(*Sentencing Procedure) Act 1999. The offenders took immediate steps to prevent access to the roof and to install permanent covers and edge protection. Later they took further comprehensive and appropriate steps to improve their safety system.

54. The offenders have accepted responsibility for the offences and expressed remorse: s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Charles, on behalf of both offenders, accepted that the offenders failed to provide a safe working environment and expressed remorse for the injury suffered by Mr Shanmugalingam. Charles has also accepted that the incident has had a significant deleterious impact on the workers of the Group and his family.

55. The offenders are good corporate citizens. The Labour Hire Company is an employer of a large number of non-English speaking workers in western Sydney. The Group has made charitable contributions to a number of local causes.

56. The offenders conducted the trial in a manner that reflected a willingness to facilitate the course of justice: R v Thangavelautham [2016] NSWCCA 141 at [58] per Bathurst CJ. The offenders made admissions that saved considerable court time. The admissions were significant, reflecting the offenders’ responsibility for the offences and an acceptance of the objective gravity of their conduct. The offenders’ admissions reduced the issues to be decided. The offenders’ admissions almost entirely matched my findings at the end of a prolonged trial requiring the resolution of some new, novel and complex issues.

57. The offenders entered pleas of guilty: s 21A(3)(k) and s 22 Crimes *(*Sentencing Procedure) Act 1999. The offenders are entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32].

58. The background to the timing of the pleas is complex and requires me to set out the background circumstances. At all interlocutory stages of the proceedings, which had travelled together, each offender had entered pleas of not guilty and the matters were set down for trial to be heard together commencing on 25 March 2024, with a four-day estimate.

59. Shortly before the trial commenced the prosecutor provided a number of documents by way of written opening. On the first day of the trial, counsel for the prosecutor made some opening remarks on the issues in the proceedings.

60. Senior counsel for the defendants responded orally setting out the issues to be contested by the defendants and provided some written submissions on the relevant legal issues that had been identified. As part of the defendants’ opening, senior counsel for the defendants indicated that the General Partner and the Labour Hire Company accepted that they were both guilty of the s 32 offence alleging a breach of the s 19(1) duty owed by each of them to the workers by failing to take the admitted steps which I set out at [12]-[13] of the primary judgment, and made formal admissions to that effect. The General Partner and the Labour Hire Company handed up a document that was marked MFI 1 and later tendered on the costs application. Senior counsel for the defendants stated that the matters involving the General Partner and the Labour Hire Company the only live issue was the fault element of the s 31 offences, ie that either of them was grossly negligent or reckless.

61. Following a short adjournment, senior counsel for the defendants indicated that he had been asked by counsel for the prosecutor to clarify two matters relating to the pleas of guilty. What he said was recorded on the transcript as follows:

TAYLOR: Two things my friend asked me to respond to before we had a break. The first is the nature of the pleas of guilty, in circumstances where the documents that I handed to your Honour refers to a summons dated 22 May, but which does not, in terms, identify the date period of the offence.

HIS HONOUR: Yes.

TAYLOR: Firstly, as to the nature of the summons or identifying the correct document, it’s our understanding that there is, in respect of both the general partner and the labour hire company, two summonses.

HIS HONOUR: Yes.

TAYLOR: One of which in each case has a s 31 charge and the alternative, a s 32 charge for breach of the duty under s 19.

HIS HONOUR: Yes.

TAYLOR: In each case those summonses commence with the words “The defendant is ordered to appear before the District Court on 3 July 2023”, and bears the date under the judge’s signature of 22 May 2023. To the extent to which the document I’ve handed to you, MFI 1, refers to summonses, it’s referring to those documents.

HIS HONOUR: Yes.

TAYLOR: My friend also wanted, in circumstances where we have complained bitterly about a style of drafting which identifies that the charge occurred over a date period of before and on 22 May 2021, can I be clear that those indications of guilty are to the effect that on 22 May 2021 that our clients were guilty. And I hear what your Honour has asked my friend as to any conduct on earlier days. And as we understand my friend’s position, my friend’s position is that on 22 May the named workers were exposed to a risk.

HIS HONOUR: Yes.

TAYLOR: And that the omissions and acts were things which the prosecution says, in fact, occurred on earlier days. Our plea is that on that day those workers were exposed to a risk, because on that day they were not prevented from working on the roof. And on that day, the roof did not have the features which we plead guilty to, namely, permanent protective covers over the skylights and adequate edge protection or rails.

HIS HONOUR: Yes.

62. I pause to note that MFI 1 referred only to proceedings numbers 2023/160857 relating to the General Partner and 2023/160882 relating to the Labour Hire Company. It did not refer to proceedings number 2023/160834 that pleaded the ss 31 and 32 offences relating to a breach of the s 20(2) duty. Further, senior counsel for the defendants was mistaken about there were two summonses for each of the General Partner and the Labour Hire Company. There were two summonses relating to the General Partner and the Limited Partner, but only one relating to the Labour Hire Company. It was not alleged that the Labour Hire Company owed a duty under s 20(2) of the Act.

63. The mistake made was understandable. Each alternate set of charges was contained in a separate summons and the content of the summonses was highly repetitive, especially in so far as the particulars of breach of duty was concerned, however for some reason the repetition was not always uniform or in the same order. When considered as a whole the summonses required very detailed and careful analysis to understand where allegations were being repeated and where they were being repeated but restated.

64. I have carefully reviewed the prosecutor’s written and oral opening. There was no reference to whether or not the offences pleaded against the General Partner or the Limited Partner alleging a breach of the s 20(2) duty were pleaded in the alternative to the offences alleging a breach of the s 19(1) duty. No clarification was sought in open court as to whether the General Partner’s plea of guilty extended to the charges alleging a breach of the s 20(2) duty. However, in my view it was clear that the General Partner did not contest any of the matters being put against it, other than the fault element of the s 31 offences and the case was conducted by the General Partner consistent with that understanding.

65. On 17 September 2024, day 7 of the trial, in the prosecutor’s closing submissions, in the course of argument relating to the liability of the Limited Partner, counsel for the prosecutor said in response to the defendant’s outline of submissions:

DOCKING: …The second line makes reference to “alternatively”, I make it clear that the prosecutor has not advanced the s 20(2) offence as an alternative to s 19(1).

HIS HONOUR: It hasn’t?

DOCKING: No, never has.

HIS HONOUR: Okay. I understood it was that way, but I stand to be corrected, so.

DOCKING: No.

HIS HONOUR: This is for—

DOCKING: The General Partner and the Limited Partner.

HIS HONOUR: For both.

66. Counsel for the prosecutor then proceeded to identify the relevant summonses to that effect. There was no acknowledgement by the prosecutor at that point that the General Partner had conducted the case consistent with the formal admissions by it, that it was guilty of the s 32 offence alleging a breach of the s 20(2) duty.

67. I pause to note that there was an element of confusion in the defendant’s written submissions about the charges. The statement of the charges pleaded against the General Partner was clumsy and hard to follow. The submissions stated correctly that the General Partner and the Labour Hire Company had entered pleas of guilty to the s 32 charges alleging a breach of s 19(1) and that the General Partner had maintained a plea of not guilty relating to the s 32 charge alleging a breach of s 20(2) duty, but incorrectly stated that the Labour Hire Company had pleaded not guilty to ss 31 and 32 offences alleging a breach of the s 20(2) duty, when the Labour Hire Company was not charged with any such offences.

68. On 18 September 2024 I raised with the counsel for the defendants as to why the General Partner had not entered a plea to the s 32 offence alleging a breach of the s 20(2) duty, because the General Partner had not put in issue the elements of that offence, except as to the further steps.

69. Counsel for the defendants stated that he had believed, presumably until the previous day, that the relevant charges had been pleaded in the alternative against the General Partner. He accepted that the General Partner had not sought to contest any of the elements of the s32 offence alleging a breach of the s 20(2) duty including by conceding that the General Partner had control of the workplace and thereby owed the duty. Counsel for the defendants sought time to get instructions on the issue.

70. On 1 October 2024, the solicitors for the General Partner advised my Associate that the General Partner entered a plea of guilty to the s 32 offence alleging a breach of the s 20(2) duty and provided the admitted particulars of breach which became the subject of consideration in the primary judgment.

71. Notwithstanding that the pleas of guilty entered by the General Partner and the Labour Hire Company were made on the first day of trial they were of significant utilitarian value. The pleas of guilty and the formal admissions underlying them represented my findings in the primary judgment, with the exception of the establishment of the risk assessment particular which was decided on the application of legal principles to the undisputed facts. The amount of time taken to establish the risk assessment particular was negligible in the context of the trial. Had the pleas of guilty been accepted by the prosecutor the matters could have been resolved in one day, even if there was a contested facts hearing relating to the risk assessment particular. Further, had the pleas been accepted it is likely that the error relating to the s 32 charge alleging a breach of the s 20(2) duty would have been identified.

72. I am satisfied that the failure by the General Partner to enter a plea of guilty to the s 32 offence alleging a breach of the s 20(2) duty was a mistake made by the defendant’s representatives arising from the prolix and repetitive nature of the pleadings and the multitude of more significant issues to be debated and decided. It is significant that I had the same misconception of the pleadings. Nevertheless, the General Partner conducted the proceedings consistently with the formal admissions it had made and it did not contend that the prosecutor could not establish the elements of the offence.

73. I am satisfied that the later plea of guilty entered by the General Partner still had some utilitarian value because it was the culmination of a course of conduct that followed from the formal admissions made on the first day of trial.

74. The appropriate discount for each offender for the s 32 offence relating to the breach of s 19(1) of the Act is 10%.

75. The appropriate discount for the General Partner for the s 32 offence relating to the breach of s 20 of the Act is 5%.

Capacity to pay a fine

76. The Court is required to have regard to s 6 Fines Act 1996 before imposing a fine. Where an offender seeks to have a fine reduced on the basis of a limited capacity to pay, it bears the evidentiary onus of convincing the Court that it should exercise its discretion to limit the amount of the fine. The offender’s capacity to pay is relevant but not decisive: Jahandideh v R [2014] NSWCCA 178 at [16]. A substantial fine may still be warranted as a result of the seriousness of the offence and the need for general deterrence.

77. The offenders did not contend that they had a limited capacity to pay a fine.

Totality

78. I have had regard to totality in so far as it relates to the General Partner.

79. The steps, being the admitted steps and conduct of an adequate risk assessment, that the General Partner failed to take in breach of the s 19(1) duty and the s 20 duty are identical. The same workers were exposed to the risk of death or serious injury and the injuries sustained by Mr Shanmugalingam were the same.

80. An offender must not be punished twice for common elements between offences: Pearce v The Queen (1998) 194 CLR 610 at [40] (McHugh, Hayne and Callinan JJ).

81. The duty owed by the General Partner under s 19(1) of the Act applied to all workers engaged or caused to be engaged by it. At the time of the incident there were about 200 workers engaged to work in the Shop business. The duty owed under s 20 of the Act was only owed to workers who were directed to work on the roof of the Shop, which was a much smaller number of workers who were required to work on the roof infrequently.

Costs

Relevant Law

82. The power to award costs in these proceedings is provided for by Division 4 of Part 5 of the Criminal Procedure Act 1986 (Division 4).

83. The power to award costs to a prosecutor is conditional on entry of a conviction for “an offence”, or the making of an order under s 10 Crimes (Sentencing Procedure) Act 1999 the latter of which is irrelevant for present purposes.

84. The power to award costs to an accused person is the dismissal or withdrawal of “the matter” at the end of the proceedings. Section 257C(3) Criminal Procedure Act 1986 provides an inclusive list of circumstances in which the power in s 257C(1) may be exercised, which includes “the accused person is discharged as to the offence the subject of the proceedings”.

85. In Latoudis v Casey (1990) 170 CLR 534 the High Court considered the purpose of an order for costs in a summary prosecution. Mason CJ stated at 543:

If one thing is clear in the realm of costs, it is that, in criminal as well as civil proceedings, costs are not awarded by way of punishment of the unsuccessful party. They are compensatory in the sense that they are awarded to indemnify the successful party against the expense to which he or she has been put by reason of the legal proceedings.

86. To the same effect McHugh J stated at 567:

An order for costs indemnifies the successful party in litigious proceedings in respect of liability for professional fees and out-of-pocket expenses reasonably incurred in connexion with the litigation …. The rationale of the order is that it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred. The order is not made to punish the unsuccessful party. Its function is compensatory. …

Once it is perceived that costs operate as an indemnity …, no ground exists for distinguishing between informants in summary proceedings who are public officials and those who are private persons. […] Once a legislature abolishes the rule that the Crown and those who institute summary proceedings in the public interest neither pay nor receive costs, the various rationales of that rule cannot be used to justify the exercise of the discretion to refuse to order the payment of costs of a successful defendant in summary proceedings.

87. McHugh J continued at 568:

It is true that the discretion to award costs in summary proceedings has to be exercised in circumstances which are not identical to those which exist in civil cases. For example, a criminal case cannot be settled, and the informant does not seek to vindicate any right or define any obligation of his or her own. Moreover, there are no written pleadings in criminal proceedings. The plea of not guilty in criminal proceedings, like its historic, common law counterpart in civil proceedings, puts everything in issue. As Wells J pointed out in Schaftenaar v Samuels (…), “the issues, apart from the one joined on the plea of not guilty, can be identified only from the course of evidence and the addresses”. But, despite the differences between civil and criminal proceedings, once the real issues in the summary proceedings are identified, there is no difficulty in applying in such proceedings principles akin to those applicable to the making or refusing orders for costs in civil cases.

88. In Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338 the Court of Criminal Appeal described at [221] the principles of apportionment of costs in civil cases summarised in James v Surf Rd Nominees Pty Ltd [No 2] [2005] NSWCA 296 as equally applicable to criminal proceedings subject to the qualifications discussed in Latoudis v Casey at 544, 565 and 568-569 and Morrison v Defence Maritime Services Pty Ltd (2007) 156 LGERA 365 at [20], which include:

(a) an accused person’s conduct following the commission of the alleged offence; (b) an accused person’s lack of explanation of their conduct if that explanation might have avoided the prosecution; (c) an accused person’s conduct of the proceedings; (d) the discretion must be exercised judicially and by reference to reasons connected with the case; and (e) a criminal proceeding cannot be settled and a prosecutor has a public duty to put all material issues before the Court.

Outcome of the Proceedings

89. The prosecutor was unsuccessful in establishing the issues it litigated in primary judgment, with the limited exception that it established the risk assessment particular. The trial leading up to the primary judgment proceeded over 8 days of hearing with additional rounds of written submissions and a further short oral argument to answer questions arising during my deliberations. The time taken up with the risk assessment particular was negligible and consisted of the application of legal argument to undisputed facts.

90. The bulk of the hearing time was taken up by the prosecutor’s case against the Limited Partner and Michael Zammit, both of whom were acquitted. A further significant amount of the hearing time was allocated to the fault element of the s 31 offences, on which the corporate defendants were successful. The corporate defendants engaged senior counsel to provide submissions on that issue in response to one of my questions in October 2024.

91. The prosecutor was entirely unsuccessful in the second judgment. The s 5AE issue was first raised on 31 March 2025, at which time the prosecutor sought more time to review the primary judgment and to get instructions. On 11 June 2025 a timetable was ordered for the s 5AE application on the basis that the prosecutor would notify the defendants by a date in August if it wished to proceed with the application by providing draft questions and written submission on the issue. The timetable provided an opportunity for the defendants to provide written submissions in response. The matter was listed for oral argument on 19 September 2025 and proceeded on that day. Both parties engaged senior counsel in relation to the s 5AE application. During the course of argument on 19 September 2025, I enquired of the prosecutor if it wanted me to provide further reasons on certain aspects of the primary judgment. The prosecutor sought seven days to get instructions on that issue. On 26 September 2025 the prosecutor advised my Associate that it did not want me to provide further reasons and I delivered the second judgment SafeWork NSW v Pendle Ham & Bacon Pty Ltd (No 2) [2025] NSWDC 399 on 3 October 2025. The effect of the second judgment was that the s 5AE application was entirely misconceived on the basis of three recent Court of Criminal Appeal decisions on the application of s 5AE to prosecutions under the Act.

92. The prosecutor was successful in obtaining convictions for s 32 offences against the General Partner and the Labour Hire Company based on their pleas of guilty to those offences. The prosecutor was required to prepare for and appear at the sentence hearing on 2 December 2025.

The Prosecutor’s Submissions on Costs

93. The prosecutor’s primary submission was that there was no evidence on which the Court could conclude that the requirements of s 257C were satisfied to enliven the power to award costs. The primary submission was relied on and developed in relation to each defendant, which I will refer to in determining the issue.

94. The prosecutor’s fall-back submission was that the General Partner and the Labour Hire Company were not entitled to a costs order in their favour because “the matter” was not dismissed, or “the accused person [was not] discharged [of] the offence the subject of the proceedings”. It followed that the conviction for the s 32 offences enlivened the power under s 257B and that the issues on which the prosecutor was unsuccessful at trial were not readily severable and thereby apportionable.

The Defendants’ Submissions on Costs

95. The defendants contended that it was just and equitable for them to receive an order for costs on the issues on which the prosecutor had been unsuccessful being:

(a) the liability of the Limited Partner; (b) the liability of Michael Zammit; (c) the s 31 offences; (d) the further steps, with the exception of the risk assessment particular; and (e) the application pursuant to s 5AE Criminal Appeal Act 1912.

96. The orders sought by the defendant were that the prosecutor would pay the defendants’ professional costs of the issues on which it failed and that the General Partner and the Labour Hire Company would pay the prosecutor’s professional costs related to the pleas of guilty, with the exception of any costs related to Issue 5 in the primary judgment. The defendants then sought orders apportioning the first of those costs orders between the defendants adding up to 100%, which is unnecessary and could lead to confusion. The defendants had common representation and they are free to apportion the costs amongst the defendants as they see fit and there is no good reason to make the orders in the form sought by the defendants.

97. The prosecutor was resolute in its position that it should not pay costs at all, so I do not think that the confusion introduced by the defendants’ proposed apportionment of the first cost order is significant, or requires further submissions from the prosecutor.

Consideration

98. The prosecutor contended that each of the defendants bore an evidentiary onus in relation to their applications for costs, which they failed to discharge and it followed that they could not be awarded costs. The prosecutor suggested that each defendant had failed to prove that they were liable to pay the professional costs incurred in the proceedings against them, presumably offending the costs indemnity rule, and that no amount of costs had been specified.

99. It is convenient to deal with this argument first as it is advanced against each defendant.

100. The costs indemnity rule requires that a successful party must have a liability to pay their own legal costs in order to be able to recover costs from the unsuccessful party, so as not to enrich the successful party: Shaw v Yarranova Pty Ltd [2011] VSCA 55 at [8] (Redlich and Mandie JJA) and Wilmott v Barber (1881) 17 CH D 772 at 73 (Jessel MR).

101. The usual position is that once it is established that legal representatives act for a party with their knowledge and consent that the party becomes liable for the costs, even if there is a collateral agreement that a third party would pay the costs or recovery of costs from the client is only a remote possibility: Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495 at 501(Bankes LJ) and 504 (Atkin LJ). In such cases there is an implied retainer, that includes an implied term that the legal representatives will charge reasonable costs for work reasonably undertaken: Pryles & Defteros *(*a firm) v Green (1999) 20 WAR 541 at 550 (Parker J).

102. Adams has been applied consistently in the Australian appellate courts: Backhouse v Judd [1925] SASR 395, Angor Pty Ltd v Ilich Motor Company Pty Ltd (1992) 37 FCR 65, Grundmann v Georgeson [2000] QCA 394, Noye v Robbins [2010] WASCA 83 and Shaw. The costs indemnity rule has been described as a rule that “is not applied with excessive vigour” and as “permitting recovery of costs from the party against whom the order is made although a third party has indemnified the successful party or paid their costs” Grundman and Shaw.

103. The defendants were represented throughout the proceedings by a firm of solicitors, junior counsel and two senior counsel at different times. Consistent with the authority cited above, I infer that there was an implied retainer between the solicitors and each of the defendants which authorised the solicitors to retain counsel as and when required.

104. The prosecutor has failed to prove the existence of any agreement that would absolve any of the defendants for their liability to pay professional costs related to the proceedings. Contrary to the prosecutor’s onus submission, the evidentiary onus to prove the existence of such an agreement was borne by the prosecutor.

105. The prosecutor’s reliance on my findings in the primary judgment relating to the structure of the Group’s operations is misplaced for the following reasons. First, the costs indemnity rule is not breached even if, consistent with the evidence in the trial, all of the costs of the proceedings have been paid by the General Partner. Second, the submission that the Limited Partner could not incur a liability for professional costs in defending itself against the charges demonstrates a continuing misunderstanding of the Partnership Act 1892 (NSW) (the Partnership Act) and the legal conclusions in the primary judgment. Section 67(3)(e) of the Partnership Act expressly exempted the Limited Partner’s defence of the proceedings as taking part in the management of the business and there is no basis for suggesting that in defending the proceedings against it, the Limited Partner sought to bind the Partnership.

106. It is incontrovertible that the Limited Partner and Michael were found not guilty of the charges brought against them and that the relevant summonses were dismissed.

107. Nothing turns on the failure of any of the defendants to seek a particular sum for their professional costs. Section 257C(2) Criminal Procedure Act 1986 provides that the court can specify the amount of professional costs or direct that the amount be determined pursuant to s 257G, that is as agreed or assessed. Having regard to the competing interests and the length and complexity of the proceedings, I intend to make orders that the amount of professional costs be determined by reference to s 257G, which includes a costs assessment pursuant to Part 7 Legal Profession Uniform Law Application Act 2014, during which any complaints about apportionment or reasonableness of any particular charges can be addressed.

108. In all of the circumstances, I am satisfied that the Limited Partner and Michael have demonstrated that the power to award costs provided by s 257C is enlivened, subject to it being just and reasonable to make an order taking into account the qualifications of the kind referred to in [88] above.

109. The Limited Partner and Michael were put to significant expense in defending the proceedings against them and it is just and reasonable that the prosecutor should compensate them for their legal costs.

110. The prosecutor further contended that by providing the revised answers late and shortly before the commencement of the hearing that the Limited Partner failed to disclose evidence which might have avoided a charge being laid. I reject this submission for the following reasons. First, for the reasons given at [67] of the primary judgment the revised answers reflected the position disclosed by the contemporaneous business records. Second, it was clear from the evidence that the prosecutor failed to properly investigate or understand the limited partnership structure before commencing proceedings against the Limited Partner. Third, the prosecutor doggedly pursued the direct criminal liability argument against the Limited Partner, which I rejected at [376]-[399] of the primary judgment, that did not depend on the revised answers or the contemporaneous business records at all.

111. The prosecutor did not put forward any other reason why Michael should not be awarded professional costs, that I have not already dealt with.

112. It is also incontrovertible that the General Partner and the Labour Hire Company were acquitted of the s 31 offences and not found to be liable for the further steps alleged in the s 32 offences (Issue 5 in the primary judgment), with the exception of the risk assessment particular.

113. The prosecutor contended that the power to award professional costs in favour of the General Partner and the Labour Hire Company in s 257C was not enlivened because “the matters were not dismissed and/or the accused person was not discharged of the offence the subject of the proceedings”. The prosecutor further contended that it was entitled to all of its costs in relation to the proceedings against the General Partner and the Labour Hire Company by reference to the convictions to be entered against them.

114. Proceedings for an offence under the Act must be commenced by summons in the approved form: rule 53.26 District Court Rules. It follows that proceedings for offences under the Act are finalised by a conviction or finding of guilt and the imposition of a sentence, a finding of not guilty which is usually followed by a dismissal of the summons or dismissal of the summons following its withdrawal by the prosecutor.

115. The starting point is that the power to award professional costs is contained in s 257C(1), to the effect that at the end of proceedings (a temporal requirement) the court may order the prosecutor to pay professional costs “if the matter is dismissed or withdrawn” (emphasis added). Section 257(3) provides an inclusive list of situations in which the court may make an order, subject to the important proviso that they do not limit the operation of subsection (1) and thereby the circumstances in which the matter is dismissed are not closed.

116. The language of s 257C(1) makes it clear that there is a distinction between the concepts “proceedings” and “the matter”. If the legislature had intended to equate those two concepts it could simply have chosen to replace the phrase “the matter” with the word “proceedings”. It follows that the dismissal of the matter may not involve the dismissal of the proceedings.

117. This conclusion is supported by a contextual analysis of the other relevant provisions of Division 4 of Part 5 Criminal Procedure Act 1986 (Division 4):

(a) s 257A defines “professional costs” to be legal costs “in respect of proceedings before a court”; (b) s 257B provides that costs may be awarded to a prosecutor relating to a conviction or finding of guilt and makes no reference to the word “proceedings”; (c) s 257D, where applicable, refers to events relating to the “alleged offence”, events relating to the initiation or conduct of the proceedings and events leading to the commencement of the proceedings; and (d) s 257F permits costs orders relating to an adjournment to be made in “proceedings”.

118. The purpose of Division 4 is to permit the making of costs orders in summary proceedings, where the accused person is successful in having a matter dismissed, and it is just and reasonable to compensate the accused person for the professional costs that they expended in defending the charge.

119. I am satisfied that it is just and reasonable that the prosecutor pay the professional costs of the General Partner and the Labour Hire Company for their successful defence of the s 31 offences which proceeded only on the fault element. Absent the prosecutor’s decision to proceed with the s 31 offences, there would have been no need for the General Partner and the Labour Hire Company to participate in the trial, except for the prosecutor’s litigation of Issue 5 and the General Partner’s late plea of guilty both of which I will return to.

120. I am also satisfied that it is just and reasonable that the prosecutor pay the professional costs of the General Partner and the Labour Hire Company for their successful defence of Issue 5 in the primary judgment relating to the further steps. The prosecutor unreasonably insisted on pursuing Issue 5 below, notwithstanding that the further steps were not supported by the expert opinion of its own expert, Inspector Kent, which I noted at [461] of the primary judgment. The prosecutor’s success on the risk assessment particular was swamped by its failure on the remainer of Issue 5 and it is not just and reasonable for it to be awarded any professional costs relevant to Issue 5.

121. The prosecutor contended that the General Partner’s late plea of guilty to the s 32 offence alleging a breach of s 20(2), meant that the prosecutor was put to proof on all issues relating to that charge and that thereby it was entitled to its professional costs of the trial against the General Partner. I reject that submission for the following reasons. First, it misrepresents the true position. For the reasons given above, the General Partner conducted its case consistently with its formal admissions. No additional time was spent by the prosecutor trying to prove the elements of the s 32 offence alleging a breach of the s 20(2) duty. I am satisfied that the failure to enter a plea to the charge was an oversight by the General Partner’s representatives. Second, I would have expected that a reasonable prosecutor acting fairly would have pointed out the General Partner’s oversight as soon as it became apparent, rather than reserving a technical point to be deployed at a convenient time.

122. The prosecutor was overwhelmingly unsuccessful in all of the issues litigated in both judgments. A number of findings made against the prosecutor in the primary judgment were made on the basis of misconceptions of the facts and the law that significantly and unreasonably expanded the time taken at hearing to resolve the issues, including by raising and fervently arguing unnecessary issues. This approach was continued in the unsuccessful argument on s 5AE Criminal Appeal Act 1912. It is just and reasonable to compensate the defendants for their professional costs incurred in defending the matters on which they were successful.

123. The prosecutor is entitled to its professional costs relating to the pleas of guilty entered by the General Partner and the Labour Hire Company. However, those costs should not include the costs relating to Issue 5 in the primary judgment for the reasons given. The prosecutor’s failure to accept the comprehensive pleas of guilty proffered by the General Partner and the Labour Hire Company was unreasonable. This led to a contested facts hearing (Issue 5) on which the prosecutor argued against the evidence of its own expert. Further, the prosecutor is not entitled to costs of the primary hearing against the General Partner because of the failure to enter a plea of guilty to the s 32 offence alleging a breach of the s 20(2) duty. I am satisfied that this was an oversight on the part of the General Partner’s legal representatives and that the case proceeded on the basis of substantial formal admissions made by the General Partner. I am not satisfied that the prosecutor was put to the proof of any issue or had to call any evidence by reason of the oversight.

124. The case to date has involved a set of questionable “one after the other” factual and legal disputes assertively pursued by the prosecutor. In order to avoid further delay and costs in finalising the issues of costs it is appropriate to offset the prosecutor’s entitlement to costs relating to the pleas of guilty by the General Partner and the Labour Hire Company by proportionately reducing the professional costs payable to the defendants for their overwhelming success in both judgments, noting that the defendants had common representation throughout the proceedings.

125. The appropriate costs order to be applied in each proceedings is that the prosecutor is to pay 80% of the defendants’ costs of the proceedings.

Penalty – The General Partner

126. Pendle Ham & Bacon Pty Ltd is convicted.

127. The appropriate fine for the s 32 offence relating to the breach of s 19(1) of the Act is one of $300,000 which will be reduced by 10% to reflect the plea of guilty, resulting in a fine of $270,000. I impose a fine of $270,000.

128. The appropriate fine for the s 32 offence relating to the breach of s 20 of the Act is one of $250,000 which will be reduced by 5% to reflect the plea of guilty, resulting in a fine of $237,500. Having regard to totality and the considerable overlap of criminality in the two offences, it is appropriate to further reduce the fine for the offence. I impose a fine of $50,000.

129. The total amount of fines imposed on the General Partner for both offences is $320,000.

Penalty – The Labour Hire Company

130. PHBC LH Pty Ltd is convicted.

131. The appropriate fine is one of $300,000 which will be reduced by 10% to reflect the plea of guilty.

132. I impose a fine of $270,000.

133. I order pursuant to section 122(2) Fines Act 1996 that 50% of the fines imposed, is to be paid to the prosecutor.

134. I order that the prosecutor is to pay 80% of the defendants’ costs in each proceeding.

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