Citation: SafeWork NSW v Chris Darby Strata Pty Ltd [2024] NSWDC 360
Court: District Court of New South Wales
Date: 22 August 2024
Judge: Russell SC DCJ
Background
Chris Darby Strata Pty Ltd was the strata managing agent for an industrial complex in Berkeley, NSW. The complex was a multi-unit site with a large custom-built sliding electric gate forming part of the common property. In 2019, the owners corporation appointed Chris Darby Strata under a strata management agreement, which authorised the company to effect repairs and maintain common property.
On the night of 4 June 2020, a van struck the gate at high speed, bending it out of shape, partially dislodging it from its track, and displacing the stopper that prevented the gate from overtravelling in the closing direction. Chris Darby Strata was notified of the damage on 5 June 2020. Some occupants performed makeshift repairs the same day, but these did not eliminate the risk of the gate falling. No urgent work order was issued and the owners were not told to keep the gate out of service.
On 12 June 2020, worker Mr Jose Martins arrived at the site before other workers and attempted to push the gate open manually, as was his usual practice. The gate overtravelled, came off its rollers and fell. Mr Martins was fatally crushed.
Legal Issues
- Whether Chris Darby Strata, as a person with management or control of a workplace under s 20(2) of the Work Health and Safety Act 2011 (NSW), failed to ensure so far as reasonably practicable that the means of entering and exiting the site were without risks to health and safety, contrary to s 32 of the same Act.
- What penalty was appropriate, having regard to the objective seriousness of the offence, applicable mitigating and aggravating factors, the early guilty plea, and the defendant's capacity to pay.
- What costs order should be made.
Decision
Chris Darby Strata pleaded guilty to contravening s 32 of the Work Health and Safety Act 2011 (NSW) by failing to comply with its duty under s 20(2). The company accepted that it failed to take reasonably practicable measures after being notified of the gate damage on 5 June 2020. Those measures included arranging prompt repair or replacement of the gate, taking the gate out of service, erecting warning signs or barricades, and confirming timeframes for repairs with competent persons.
The court assessed the appropriate base fine at $200,000, taking into account the objective seriousness of the offence and relevant sentencing factors. The maximum penalty for the offence was $1,731,500, meaning the base fine represented approximately 11.5% of the maximum.
That figure was then reduced by 25% to reflect the early guilty plea, consistent with the approach in Green v The Queen and related authorities. The final penalty was set at $150,000. The court also ordered, pursuant to s 122(2) of the Fines Act 1996 (NSW), that 50% of the fine be paid to the prosecutor, SafeWork NSW.
Orders Made
- Chris Darby Strata Pty Ltd convicted on 7 August 2024.
- Chris Darby Strata Pty Ltd ordered to pay a fine of $150,000.
- Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine to be paid to the prosecutor.
- Chris Darby Strata Pty Ltd ordered to pay the prosecutor's costs.
Key Takeaways
- A strata managing agent holding contractual authority over common property maintenance can be a "person with management or control of a workplace" under s 20(2) of the Work Health and Safety Act 2011 (NSW), and can be prosecuted for failing to keep the means of entry and exit free from risk.
- Notification of a known hazard, without any follow-up to arrange repairs, communicate risk to owners, or take the hazard out of service, was sufficient to ground a finding that reasonably practicable measures had not been taken.
- The District Court assessed objective seriousness by reference to the maximum penalty of $1,731,500, settling on a base fine of $200,000 before applying a 25% discount for the early guilty plea, resulting in a final fine of $150,000.
- Under s 122(2) of the Fines Act 1996 (NSW), the court directed that half the financial penalty be paid directly to the prosecuting authority, SafeWork NSW.
- This decision sits alongside related proceedings against the owners corporation for the same incident (SafeWork NSW v The Owners – Strata Plan No 93899 [2024] NSWDC 277), illustrating that multiple parties in a strata management chain can face separate WHS prosecutions arising from the same event.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 20, 32
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26, 27, 28, 30A, 30B, 30D, 30E
- Fines Act 1996 (NSW), ss 6, 122
- Strata Schemes Management Act 2015 (NSW), s 106
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
- Capral Aluminium Limited v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610
- Green v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Nash v Silver City Drilling (NSW) Pty Limited [2017] NSWCCA 96
- SafeWork NSW v Maluko Pty Ltd [2023] NSWDC 274
- SafeWork NSW v The Owners – Strata Plan No 93899 [2024] NSWDC 277
- Unity Pty Limited v SafeWork NSW [2018] NSWCCA 266
- Veen v The Queen (No. 2) [1988] HCA 14; (1988) 164 CLR 465