Citation: SafeWork NSW v Miller Logistics Pty Ltd; SafeWork NSW v Mitchell Doble [2024] NSWDC 58
Court: District Court of New South Wales
Date: 8 March 2024
Judge: Russell SC DCJ
Background
In November 2020, a truck driver employed by a subcontractor was working on foot at a transport depot in Tamworth when he was struck by a forklift operated by another worker. He suffered serious injuries. The depot was operated by Miller Logistics Pty Ltd, which traded as Doble Express Transport.
SafeWork NSW brought two separate prosecutions arising from the incident. The first was against Miller Logistics as the person conducting a business or undertaking (PCBU), alleging a failure to comply with its primary health and safety duty under the Work Health and Safety Act 2011 (NSW) (WHS Act). The second was against Mitchell Doble, a company officer, alleging he failed to exercise the due diligence required of officers under the same Act.
By the time of trial, Miller Logistics was in liquidation and did not appear. The proceedings against it continued on an undefended basis. Mr Doble was represented by counsel and contested the charge against him.
Legal Issues
- Whether Miller Logistics, as PCBU, failed to ensure the health and safety of workers so far as reasonably practicable, contrary to section 19(1) of the WHS Act, by not implementing adequate traffic management controls in the loading and unloading area
- What specific measures were reasonably practicable, including the provision of designated forklift lanes, pedestrian exclusion zones, physical barriers, and an adequate traffic management plan
- Whether Mitchell Doble, as an officer of Miller Logistics, failed to exercise due diligence under section 27(1) of the WHS Act to ensure the company met its obligations
- Whether the prosecution had established each element of the officer offence beyond reasonable doubt, including that Mr Doble's conduct caused or contributed to Miller's non-compliance
Decision
Miller Logistics
The court found Miller Logistics guilty. The depot's traffic management arrangements were inadequate: there was no proper separation between forklift movement and pedestrian workers in the loading and unloading area, no clearly marked exclusion zones, and no effective traffic management plan that identified the relevant risks and set out control measures. Several of the pleaded measures were found to have been reasonably practicable, and Miller's failure to implement them exposed workers, including the injured truck driver, to a risk of serious injury or death.
Mitchell Doble
The court acquitted Mr Doble. The prosecution was required to prove beyond a reasonable doubt that Mr Doble failed to exercise due diligence to ensure Miller complied with its duty. The court found the evidence showed Mr Doble had put systems in place: health and safety was a standing agenda item at management meetings, a dedicated work health and safety manager reported to him on safety matters, and he followed up on safety issues raised at those meetings. Critically, evidence from the WHS manager indicated there was never any budgetary resistance from Mr Doble when safety expenditure was needed.
The court emphasised that an officer's due diligence obligation is distinct from the PCBU's primary duty. An officer is not required personally to implement every reasonably practicable measure; the obligation is to exercise reasonable diligence in ensuring the business has appropriate systems, resources, and processes, and to verify that those systems are functioning. On the evidence, the prosecution had not proved beyond reasonable doubt that Mr Doble fell short of that standard. Because the third element of the offence was not made out, the court did not need to consider causation.
Orders Made
Miller Logistics: Found guilty of the offence under section 32 of the WHS Act (the judgment excerpt does not reproduce the specific sentencing orders for Miller).
Mitchell Doble:
- The prosecution did not prove all elements of the offence beyond reasonable doubt
- Final orders to be held in abeyance pending any application by the prosecution under section 5AE of the Criminal Appeal Act 1912 (NSW) (which allows a prosecutor to state a question of law to the Court of Criminal Appeal)
- The matter to be listed for determination of costs, entry of final orders, or argument on any proposed questions of law
Key Takeaways
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Under section 27 of the WHS Act, an officer's due diligence duty is separate and distinct from the PCBU's primary duty: an officer is not required to personally take every reasonably practicable measure, but must ensure the organisation has proper systems, resources, and processes in place and verify that they are operating effectively.
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Evidence that a company officer treated safety as a standing board agenda item, empowered a dedicated WHS manager, and followed up on safety issues without budgetary resistance was sufficient to raise doubt about whether the due diligence obligation had been breached.
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The prosecution bears the burden of proving beyond reasonable doubt each element of an officer offence, including that the officer failed to exercise due diligence. The mere fact that the PCBU committed an offence does not itself prove the officer's default.
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A PCBU operating a transport depot with shared forklift and pedestrian areas is at significant risk of breaching section 19(1) of the WHS Act where there is no adequate traffic management plan, no designated pedestrian exclusion zones, and no physical or procedural separation of forklifts from foot traffic.
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Delegation of WHS responsibilities to a compliance officer does not automatically discharge an officer's due diligence obligations, but genuine oversight, engagement, and verification of that delegate's work can go to establishing that due diligence was in fact exercised.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 3, 4, 7, 12A, 16, 17, 18, 19, 27, 32
- Work Health and Safety Regulation 2017 (NSW), cll 39, 214
- Criminal Procedure Act 1986 (NSW), s 133(2)
- Criminal Appeal Act 1912 (NSW), s 5AE
- Evidence Act 1995 (NSW), s 165
- Corporations Act 2001 (Cth), s 9
Cases
- Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92
- Bulga Underground Operations v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338
- Constantanidis v R [2022] NSWCA 4
- Orr v LakeCoal Pty Ltd [2019] NSWDC 178
- SafeWork NSW v Hetherington [2019] NSWDC 11
- SafeWork NSW v Miller Logistics; SafeWork NSW v Mitchell David Doble [2023] NSWDC 252
- Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316
- Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304
- Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015
- WorkCover Authority of New South Wales (Inspector Mansell) v Daly Smith Corporation (Aust) Pty Ltd and Smith [2004] NSWIRComm 349
- WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453