Citation: Prime Marble & Granite Pty Ltd v Safework NSW [2024] NSWCCA 105
Court: Court of Criminal Appeal, New South Wales
Date: 24 June 2024
Judges: Harrison CJ at CL (primary judgment); Hamill J and N Adams J (agreeing)
Background
The appellant was a stone fabrication business whose workers were found, on 30 August 2017, to have been exposed to respirable crystalline silica ("RCS") dust at levels between 2.1 and 7.5 times the regulated workplace exposure standard. A SafeWork NSW inspector attended the premises that day and subsequently produced a report, dated 20 November 2017, noting the breach and recommending health monitoring for affected workers.
Two workers employed by the appellant during the relevant period both died in 2020 from conditions associated with silica dust exposure. SafeWork NSW did not become aware of those specific workers until early 2021. Proceedings against the appellant were commenced by summons on 30 March 2023, alleging breaches of the primary duty of care under section 19 of the Work Health and Safety Act 2011 (NSW), constituting Category 2 offences under section 32.
The appellant sought to have both summonses dismissed as time-barred under section 232 of the Act, which requires proceedings to be commenced within two years of the offence first coming to the notice of the regulator. The District Court declined to dismiss the summonses, and the appellant sought leave to appeal that interlocutory decision to the Court of Criminal Appeal.
Legal Issues
- When does the two-year limitation period under section 232(1)(a) of the Work Health and Safety Act 2011 (NSW) commence for a Category 2 offence under section 32?
- Does the phrase "exposes an individual to a risk" in section 32(c) require the regulator to have notice that the risk has actually materialised (for example, through death or serious injury), or is notice of the risk itself sufficient to start the clock?
- What standard of review applies to an interlocutory decision of this character?
Decision
The Court held that the limitation period in section 232(1)(a) commences when the regulator has notice of the elements of the alleged offence. For a section 32 offence, those elements include the exposure of an individual to a risk of death or serious injury or illness. The offence is complete at that point. It is not necessary for the risk to have materialised into actual death or injury before the limitation period begins.
The Court rejected the primary judge's reasoning that, because silicosis is an accumulative disease and a single day's exposure would not cause it, the regulator lacked the necessary notice of an offence on 30 August 2017. That reasoning was found to overlook the role of the word "risk" in section 32(c). The section concerns exposure to a risk, not the causation of a consequence. As the Court noted, section 32(c) refers to a failure that "exposes an individual to a risk of death or serious injury or illness," not a failure that "causes" such outcomes.
On the facts, the Court found that as of 30 August 2017, SafeWork NSW had reasonable grounds to believe that workers were being exposed to a risk of death or serious injury through RCS dust exposure. Accordingly, the two-year limitation period began on that date. Since the summonses were not filed until 30 March 2023, more than five years later, they were filed outside the limitation period.
On the standard of review, the Court (Hamill J and N Adams J) held that the correctness standard applied, rather than a more deferential standard, because the decision below involved the construction of statutory provisions rather than an evaluative or discretionary judgment.
Orders Made
No orders were made in this decision.
Key Takeaways
- Under section 232(1)(a) of the Work Health and Safety Act 2011 (NSW), the two-year limitation period for prosecutions begins when the regulator first has notice of all the elements of the alleged offence, including the exposure of an individual to a risk.
- Section 32(c) of the Act is directed at the existence of a risk, not the materialisation of that risk. A regulator's notice of the risk itself, not a later death or injury, is sufficient to start the limitation clock.
- The Court of Criminal Appeal confirmed that the fact prosecutions are rarely brought without a serious injury or death does not alter the statutory language: proof of risk (rather than consequence) is both sufficient and necessary for the offence.
- Where a limitation period argument turns on the construction of statutory provisions rather than an evaluative judgment, the correctness standard of appellate review applies, not a more deferential one.
- SafeWork NSW's awareness of dangerously elevated RCS dust levels at a worksite in August 2017 was sufficient to constitute notice of the section 32 offence at that time, even though the specific workers named in the summonses did not come to SafeWork's attention until 2021.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19, 32, 232
- Work Health and Safety Regulation 2011 (NSW), r 49
- Work Health and Safety Regulation 2017 (NSW), cl 368, sch 14
- Criminal Appeal Act 1912 (NSW), s 5F(3)
- Evidence Act 1995 (NSW), s 141
- National Parks and Wildlife Act 1974 (NSW), s 190
Cases
- Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288
- Saunders Civilbuild Pty Ltd v SafeWork New South Wales [2023] NSWCCA 261
- Unity Pty Ltd v Safework NSW [2018] NSWCCA 266
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- Koschier v R [2024] NSWCCA 24
- Somerville v Chief Executive of the Office of Environment and Heritage [2020] NSWCCA 93
- SafeWork NSW v Prime Marble & Granite Pty Ltd [2024] NSWDC 17
- R v Board of Trustees of the Science Museum [1993] 3 All ER 853
- House v The King (1936) 55 CLR 499
- GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338