Citation: SafeWork NSW v Rex Australia Pty Ltd; SafeWork NSW v Wei Wang [2021] NSWDC 334
Court: District Court of New South Wales
Date: 23 July 2021
Judge: Russell SC DCJ
Background
Rex Australia Pty Ltd operated a glass wholesaling and manufacturing business. On 11 September 2018, a worker at the company's factory walked between an unloading table and a forklift while another worker used the forklift to lift an A-frame trolley loaded with unsecured glass panels. The trolley fell forward from the forklift's tines, and the glass panels struck worker Mr Lafaele Mulipola.
SafeWork NSW prosecuted both the company and its Managing Director. Rex Australia pleaded guilty to failing to comply with its primary duty as a person conducting a business or undertaking under section 19 of the Work Health and Safety Act 2011 (NSW), thereby exposing Mr Mulipola to a risk of death or serious injury, contrary to section 32. The Managing Director, Mr Wei Wang, separately pleaded guilty to failing to exercise due diligence as an officer of the corporation under section 27 of the same Act, exposing Mr Mulipola to the same risk.
The maximum penalty for Rex was $1,500,000 and for Mr Wang $300,000. Both matters proceeded to sentencing before the District Court.
Legal Issues
- What fine was appropriate for Rex Australia, having regard to objective seriousness, mitigating and aggravating factors, and the guilty plea discount?
- What fine was appropriate for Mr Wang as an officer who failed to exercise due diligence?
- Whether either defendant had discharged the evidentiary onus to persuade the court to limit the fine on the basis of financial hardship or inability to pay.
- Whether costs orders should be made in favour of the prosecutor.
Decision
The court assessed the objective seriousness of both offences, noting a substantial range of failures: no risk assessment had been conducted; the forklift used was unsuitable for lifting loaded A-frame trolleys; there was no traffic management plan or safe operating procedure for the unloading area; no exclusion zone had been established; and workers had received inadequate instruction and training about access to the loading area. These compounding omissions informed the court's assessment of the seriousness of each offence.
For Rex Australia, the court determined that an appropriate fine before any discount was $300,000. Applying a 25 percent reduction to reflect the guilty plea under the Crimes (Sentencing Procedure) Act 1999 (NSW), the final fine was set at $225,000. The court also ordered that 50 percent of that fine be paid to SafeWork NSW as prosecutor, pursuant to section 122(2) of the Fines Act 1996 (NSW).
For Mr Wang, the court set the appropriate fine at $60,000 before the guilty plea discount, reducing it to $45,000. The same 50 percent allocation to the prosecutor applied. The court also ordered both defendants to pay the prosecutor's costs.
On capacity to pay, both defendants sought to rely on financial material to argue for a reduced penalty. The court found that neither defendant had discharged the evidentiary onus on that point. Unexplained large credits and transfers in accounts held by Mr Wang shortly before the hearing undermined the reliability of his financial evidence, and the court declined to exercise its discretion to limit the fines accordingly.
Orders Made
Rex Australia Pty Ltd:
- Convicted of the offence charged.
- Fined $225,000 (being $300,000 reduced by 25% for the guilty plea).
- 50% of the fine to be paid to SafeWork NSW pursuant to section 122(2) of the Fines Act 1996 (NSW).
- Ordered to pay the prosecutor's costs.
Wei Wang:
- Convicted of the offence charged.
- Fined $45,000 (being $60,000 reduced by 25% for the guilty plea).
- 50% of the fine to be paid to SafeWork NSW pursuant to section 122(2) of the Fines Act 1996 (NSW).
- Ordered to pay the prosecutor's costs.
Key Takeaways
- A combination of systemic WHS failures, including the absence of a risk assessment, no traffic management plan, no exclusion zone, and inadequate worker training, supported a finding of meaningful objective seriousness even where the penalty imposed remained well below the statutory maximum.
- Officer liability under section 27 of the WHS Act 2011 (NSW) operates separately from corporate liability: Mr Wang was convicted and fined in his personal capacity for failing to exercise due diligence, notwithstanding that he was not present at the workplace on the day of the incident.
- Where a defendant seeks to rely on financial hardship to reduce a penalty, the evidentiary onus lies with that defendant. Unexplained large movements in bank accounts in the period before the hearing were treated as undermining the credibility of the financial evidence presented.
- A 25 percent reduction to reflect a guilty plea applied equally to the corporate offender and the individual officer, consistent with the approach under the Crimes (Sentencing Procedure) Act 1999 (NSW).
- Under section 122(2) of the Fines Act 1996 (NSW), courts may direct that a portion of a WHS fine be paid directly to the prosecuting authority, and the District Court applied that provision to allocate half of each fine to SafeWork NSW.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 19, 27, 32
- Work Health and Safety Regulation 2017 (NSW), cll 34, 35, 36, 37, 38, 54, 218
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22
- Fines Act 1996 (NSW), ss 6, 122
Cases:
- Baumer v R [1988] HCA 67; (1988) 166 CLR 51
- Bulga Underground Operations Pty Limited v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- BW v R [2011] NSWCCA 176
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Mahdi Jahandideh v The Queen [2014] NSWCCA 178
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Limited; Attorney General for NSW v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566
- R v Wilkinson (No. 5) [2009] NSWSC 432
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465