Citation: SafeWork NSW v Guskho Demolition and Excavation Pty Ltd [2023] NSWDC 414
Court: District Court of New South Wales
Date: 6 October 2023
Judge: Strathdee DCJ
Background
Guskho Demolition and Excavation Pty Ltd (the defendant company) operated in the asbestos removal and demolition industry. It was engaged to remove friable asbestos from a residential site at Umina Beach after a fire converted previously non-friable asbestos into the more hazardous friable form. The defendant did not hold the required Class A asbestos removal licence for that work.
The defendant had an established arrangement with Five Star Asbestos Pty Ltd (FSA), a Queensland company whose director held a Class A licence. Under that arrangement, FSA would provide the required supervision for jobs demanding a Class A licence holder. The defendant engaged FSA under this arrangement for the Umina Beach job.
A notification was submitted to SafeWork NSW on 24 January 2018, nominating FSA and three supervisors, including FSA's director and two others, one of whom was also a director of the defendant company. SafeWork NSW charged the defendant with three offences: directing or allowing workers to carry out work requiring authorisation when the defendant was not authorised; providing false or misleading information in purported compliance with the notification requirement; and producing a false or misleading document in that same context.
Legal Issues
- Whether the defendant, as a person conducting a business or undertaking, directed or allowed workers to carry out friable asbestos removal without holding the required Class A authorisation, contrary to s 43(2) of the Work Health and Safety Act 2011 (NSW)
- Whether the SafeWork notification submitted on 24 January 2018 contained information the defendant knew to be false or misleading in a material particular, contrary to s 268(1)(a) of the WHS Act
- Whether the sealed notification document provided to AKA Industries on 6 February 2018 was a document the defendant knew to be false or misleading in a material particular, contrary to s 268(2) of the WHS Act
- Whether the conduct of the defendant's director in supervising the works on site could be attributed to the defendant company for the purpose of establishing the elements of these offences
Decision
On the s 43(2) strict liability charge, the court accepted that the defendant did not itself hold a Class A licence. However, the critical question was whether the defendant had "directed or allowed" the workers to carry out the work without proper authorisation. The court found that the individual who supervised and directed workers on site did so in his capacity as a nominated supervisor acting on behalf of FSA, not on behalf of the defendant. The arrangement between the defendant and FSA was genuine, FSA had nominated the supervisors itself, and the supervision was conducted under FSA's authority.
The court rejected the prosecution's argument that the defendant's director was acting as an agent of the defendant when directing the work. Because FSA had nominated him as a supervisor, his acts on site were FSA's acts, not the defendant's. The corporate attribution provisions in s 244 of the WHS Act did not assist the prosecution on this charge, because the direction of the works flowed from FSA's engagement rather than from the defendant company.
On the false and misleading information charges under s 268, the court considered whether the notification was known by the defendant to be false or misleading in a material particular. The court found that the prosecution had not established this element. Importantly, the court accepted evidence that FSA's director had been personally contacted to confirm the details of the notification before it was submitted, undermining the suggestion that FSA was nominated as a sham or without genuine knowledge. The court expressly rejected the evidence of the secretary who claimed she had submitted the form in error after being misled, preferring instead the uncontested contemporaneous note of a conversation confirming the details with the director personally.
Taken together, the prosecution had not proved all elements of each offence beyond reasonable doubt. The court declined to enter final orders immediately, to allow the prosecution an opportunity to consider whether to bring an appeal under s 5AE of the Criminal Appeal Act 1912 (NSW).
Orders Made
- The prosecution did not prove all elements of the offences beyond reasonable doubt.
- Final orders were not entered, pending the prosecution's opportunity to consider an application under s 5AE of the Criminal Appeal Act 1912 (NSW).
- The matter was listed on 6 November 2023 to determine the appropriate course.
Key Takeaways
- Under s 43(2) of the WHS Act, liability turns on whether the person conducting the business or undertaking actually "directed or allowed" the relevant work without proper authorisation. Where a licensed third party has been genuinely engaged to supervise the work and has itself nominated the supervisors, the acts of those supervisors may not be attributable to the engaging company.
- A prosecution relying on corporate attribution under s 244 of the WHS Act must establish that the relevant conduct was engaged in by an employee, agent or officer acting within the scope of their authority on behalf of the defendant body corporate. That attribution does not automatically follow merely because an individual holds a directorship in the defendant company.
- The District Court confirmed that s 43(2) is a strict liability offence, meaning no fault element needs to be proved. However, the absence of a fault element does not relieve the prosecution of proving all other elements, including that the defendant was the entity that directed or allowed the work.
- Where a notification to a regulator is in issue under s 268(1)(a), the prosecution must prove that the defendant knew the information to be false or misleading. Contemporaneous documentary evidence confirming that the nominated licence holder was aware of and had confirmed the details of a notification can undermine a prosecution's case on that element.
- Credibility findings played a significant role in this outcome. The court preferred uncontested contemporaneous evidence over witness accounts it found implausible, particularly evidence that amounted to retrospective rationalisation of why the matter was being prosecuted.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 12A, 43(2), 244, 268(1)(a), 268(2)
- Work Health and Safety Regulation 2017 (NSW), cls 459(a), 466(1), 485(2), 486, pt 8.10
- Criminal Appeal Act 1912 (NSW), s 5AE
- Corporations Act 2001 (Cth)
Cases cited:
- R v Maslen & Shaw (1995) 79 A Crim R 199
- Minister for Immigration, Local Government & Ethnic Affairs v Dela Cruz (1992) 34 FCR 348
- R v Gervaise & Preece (NSW Court of Criminal Appeal, 13 November 1997)
- R v Traino (1987) 27 A Crim R 271