Citation: SafeWork NSW v Landmark Roofing Pty Ltd (No. 3) [2020] NSWDC 675
Court: District Court of NSW
Date: 09 November 2020
Judge(s): Russell SC DCJ
Background
A roofing company (the defendant) was prosecuted by SafeWork NSW under the Work Health and Safety Act 2011 (NSW). Following a hearing in May 2020, the court found the offence proved beyond reasonable doubt. At a subsequent sentence hearing in August 2020, the court imposed a fine of $400,000 and ordered the defendant to pay the prosecutor's costs.
The defendant lodged an appeal to the Court of Criminal Appeal and, by Notice of Motion filed 5 November 2020, sought a stay or suspension of those financial orders pending the outcome of that appeal. The appeal had been listed for hearing on 7 April 2021.
The central question was whether, and on what conditions, the court should exercise its discretion under r 15 of the Criminal Appeal Rules (NSW) to suspend payment of the fine and costs.
Legal Issues
- Whether the defendant had arguable grounds of appeal sufficient to engage the court's discretion to suspend the penalty and costs orders
- How the balance of convenience should be assessed in light of the defendant's financial position and the risk to the public purse
- What conditions, if any, should attach to any suspension
Decision
Issue 1: Arguable Grounds of Appeal
The court accepted that demonstrating arguable grounds is the threshold for suspension, and that the court will not assess the strength or prospects of the appeal at this stage (at [12]). Having regard to the detailed submissions already filed in the Court of Criminal Appeal, running to 208 paragraphs across five grounds of appeal, the court was satisfied that arguable grounds had been established (at [11], [16]).
Issue 2: Balance of Convenience
The prosecutor submitted that the balance of convenience must account for the risk that, if the fine were suspended and the appeal ultimately failed, the defendant might not pay (at [14]). The defendant's position was that there was no evidence it could not pay the fine through borrowing or other means if the appeal failed, and senior counsel for the defendant acknowledged it would be appropriate to pay a sum into court as a condition of any stay (at [15]).
The court noted that since sentencing, the defendant's financial position had changed materially: a loan of approximately $71,000 previously owed to the company's principal had been fully repaid, and a further loan of approximately $13,000 had been made to him, reducing the assets available to meet the fine by roughly $85,000 (at [8], [19]). The defendant remained a going concern of modest size, operating in difficult economic conditions (at [18], [21]).
The court found that requiring the defendant to pay the entire fine before the appeal was heard, only to recover it if successful, would be a substantial imposition, and that it was in both parties' interests for the business to remain viable (at [21]). Weighing those considerations together with the arguable grounds of appeal, the court was satisfied suspension was appropriate (at [22]).
Issue 3: Conditions of Suspension
The court imposed a condition that the defendant pay $85,000 into court within seven days, reflecting the approximate reduction in the defendant's available assets since sentencing (at [22]). The defendant was also required to file a written undertaking to prosecute the appeal with due despatch (at [22]-[23]).
Orders Made
- Payment of the fine and costs ordered on 7 August 2020 is suspended until further order of the court, on the following conditions:
- (a) The defendant pays $85,000 into court by 16 November 2020
- (b) The defendant files a written undertaking by 16 November 2020 to prosecute its appeal to the Court of Criminal Appeal with due despatch
- Liberty to apply
Key Takeaways
- Under r 15 of the Criminal Appeal Rules (NSW), suspension of a penalty pending appeal is discretionary and does not require the defendant to demonstrate special or exceptional circumstances; demonstrating arguable grounds of appeal is sufficient to enliven the discretion (at [12]).
- The balance of convenience in this context requires the court to weigh the risk to the public purse if the appeal fails against the burden on a defendant of paying a substantial fine months before the appeal is heard, particularly where the defendant is a small, viable business (at [14]-[15], [21]).
- Changes in the defendant's financial position between the sentencing hearing and the suspension application were treated as directly relevant to fixing the conditions of suspension, with the court using the approximate reduction in available assets (roughly $85,000) to calibrate the amount to be paid into court (at [19], [22]).
- A condition requiring payment into court of a sum reflecting changed financial circumstances, together with an undertaking to prosecute the appeal diligently, represents one available framework for balancing the competing interests on a suspension application of this kind (at [22]-[23]).
Legislation and Cases Referenced
Legislation
- Criminal Appeal Rules (NSW) , r 15
- Work Health and Safety Act 2011 (NSW)
Cases
- Burgess v Ors v Mount Thorley Operations Pty Ltd [2002] 119 IR 52
- Lyco Industries Pty Ltd v Inspector Buggy [2006] NSWIRComm 19
- SafeWork NSW v Landmark Roofing Pty Ltd [2020] NSWDC 202
- SafeWork NSW v Landmark Roofing Pty Ltd (No. 2) [2020] NSWDC 420