Citation: SafeWork NSW v Poletti Corporation Pty Ltd [2019] NSWDC 791
Court: District Court of New South Wales
Date: 18 December 2019
Judge: Scotting DCJ
Background
Poletti Corporation Pty Ltd was engaged as the formwork contractor for the construction of two residential apartment towers in Parramatta. As part of that role, it supplied, installed and operated a jumpform screen system designed to provide perimeter edge protection to workers on the West Tower during construction. The screens served two distinct groups: formworkers at the upper levels, and finishing trades carrying out glazing, rendering and painting at the lower levels.
The finishing screens were fitted with internal work platforms. The design of the middle and lower levels of those screens left a horizontal gap of approximately 220 mm between the leading edge of the work platform and the building facade. The bottom level was fitted with hinged plywood flaps to close that gap. A void also existed on the south-eastern corner of the building, created by an architectural feature that repeated from around Level 5 to Level 56. The middle level of the finishing screens had no such protective flaps.
Following a workplace incident involving a worker, SafeWork NSW prosecuted Poletti under section 32 of the Work Health and Safety Act 2011 for failing, as a person conducting a business or undertaking (PCBU), to comply with a health and safety duty, exposing a person to a risk of death or serious injury. The matter proceeded to trial and the company was found guilty. This judgment dealt with sentencing and costs.
Legal Issues
- The appropriate penalty for the section 32 WHS Act offence, having regard to objective seriousness, aggravating factors, mitigating factors, and parity considerations
- Whether cost orders should be made against the prosecutor arising from the late service of an expert report, the consequent vacation of a hearing date, and the offender's preparation of its own expert report in response
Decision
Penalty
The maximum penalty for the offence was a fine of $1.5 million. After assessing the objective seriousness of the offence, the relevant aggravating and mitigating factors, and the need for parity with other outcomes in comparable proceedings, the court imposed a fine of $300,000. Pursuant to section 122(2) of the Fines Act 1996, 50% of that fine was directed to be paid to the prosecutor, SafeWork NSW.
Costs against the prosecutor
The court found that SafeWork NSW had handled the expert evidence poorly in several respects. The prosecutor agreed to serve an expert report approximately six weeks before it had even formally retained the expert. Delays followed, likely due to the expert's availability, and the allocated hearing dates could not be maintained.
The court was also critical of the substance of the report itself. Much of the report consisted of factual collation rather than genuine expert analysis, and the principal conclusions did not rise above the application of common sense to the alleged facts. The court found it should have been apparent upon receipt of the report that its usefulness was very limited, and that the decision not to rely on it was made far too late, at the conclusion of the prosecutor's evidence rather than much earlier.
Because the offender had reasonably retained its own expert in response to the prosecutor's report, those additional costs were thrown away when the prosecutor abandoned reliance on the report. The court made a general costs order in favour of the offender covering the costs thrown away by the late service of the report, the vacation of the March 2019 hearing date, and the preparation of the defendant's expert report.
Orders Made
- Poletti Corporation Pty Ltd convicted of the section 32 Work Health and Safety Act 2011 offence
- Fine of $300,000 imposed
- 50% of the fine directed to be paid to the prosecutor pursuant to section 122(2) of the Fines Act 1996
- Offender to pay the prosecution's costs of the proceedings
- Prosecutor to pay the offender's costs thrown away by the late service of the prosecutor's expert report, the vacation of the 12 March 2019 hearing date, and the preparation of the defendant's expert report (quantum to be determined in accordance with the procedure in section 257G of the Criminal Procedure Act 1986)
Key Takeaways
- A PCBU convicted under section 32 of the WHS Act for exposing workers to a risk of death or serious injury through deficient perimeter screening on a construction jumpform system received a fine of $300,000, well below the $1.5 million maximum, after the court weighed objective seriousness against mitigating factors and parity considerations.
- Under section 122(2) of the Fines Act 1996, the court directed that half of the fine be remitted to the prosecuting regulator, SafeWork NSW, a mechanism available in WHS penalty proceedings.
- An expert report that largely collates factual material and applies common sense rather than specialised knowledge does not constitute genuine expert evidence, and a party who serves such a report late and then abandons reliance on it at trial may be exposed to an adverse costs order covering the opposing party's wasted preparation costs.
- The District Court found that the prosecutor's obligation to assess the utility of expert evidence arises early, and that a failure to make that assessment promptly, resulting in a vacated hearing date, can attract cost consequences against the prosecuting party.
- Where the quantum of thrown-away costs is not agreed, the court may make a general costs order and direct that quantum be resolved through the procedure prescribed by section 257G of the Criminal Procedure Act 1986.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), s 32
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 257G
- Fines Act 1996 (NSW), s 122(2)
Cases
- SafeWork NSW v Poletti Corporation Pty Ltd [2019] NSWDC 491 (the verdict judgment)
- Green v The Queen (2011) 244 CLR 462
- R v Youkhana [2004] NSWCCA 412