Citation: Edstein Creative Pty Ltd v SafeWork NSW [2025] NSWCCA 69
Court: NSW Court of Criminal Appeal
Date: 12 May 2025
Judges: Ball JA (with Yehia J and Coleman J agreeing)
Background
The appellant, a stone fabrication and installation business operating in the Newcastle and Hunter regions, employed workers who cut and trimmed manufactured stone products both at its premises and off-site. One of those workers, an installer and later supervisor, may have contracted silicosis as a result of that work.
On 26 June 2019, SafeWork NSW received an adverse health monitoring report from the business disclosing that test results indicated the worker may have contracted silicosis. SafeWork NSW commenced proceedings in the District Court on 24 June 2021, roughly two years after receiving that report. Following an amended summons that addressed deficiencies in the original particulars, the business pleaded guilty and was fined $375,000 (reduced from $500,000 to reflect the guilty plea).
The business then sought leave from the Court of Criminal Appeal to appeal out of time, arguing that SafeWork NSW had possessed sufficient information to commence proceedings well before June 2019, and that the prosecution was therefore outside the two-year limitation period in s 232 of the Work Health and Safety Act 2011 (NSW).
Legal Issues
- Whether leave should be granted to appeal out of time against the conviction and fine.
- Whether the prosecution was commenced within the two-year limitation period under s 232(1)(a) of the WHS Act.
- At what point SafeWork NSW had sufficient information to infer that the offence had been committed, thereby starting the limitation clock.
Decision
The central question was when the offence "first came to the notice of" SafeWork NSW under s 232(1)(a). Following the Court's earlier decision in Prime Marble & Granite Pty Ltd v Safework NSW [2024] NSWCCA 105, the test is not whether the regulator had full knowledge of all elements of the offence. Rather, the limitation period begins when the regulator has information sufficient to give reasonable grounds for a belief that the offence has been committed.
The business relied heavily on several earlier SafeWork NSW inspections and a report from October 2018 (the Madden Report), arguing that those matters put the regulator on notice before June 2019. Ball JA rejected this argument on the facts. The earlier inspections and reports related to on-site work practices at the Taree factory, not to the conditions under which installers worked off-site. There was no evidence that SafeWork NSW had been told anything about the frequency, conditions, or dust exposure levels associated with off-site installation work.
Ball JA also noted that an earlier email from the business referring to two unnamed workers with silicosis did not indicate those workers had contracted the disease while employed by the business. Awareness of a mere possibility that an offence may have been committed is not the same as having reasonable grounds to believe an offence has been committed. SafeWork NSW lacked the necessary information until it received the adverse health monitoring report on 26 June 2019.
Because the prosecution was commenced within two years of that date, the proposed appeal was futile. The application for leave to appeal out of time was refused on that basis.
Orders Made
• Leave to appeal should be refused
Key Takeaways
- Under s 232(1)(a) of the WHS Act, the two-year limitation period begins when the regulator has information sufficient to give reasonable grounds for a belief that the offence has been committed, not when it first observes potentially relevant activity or conditions.
- Knowledge of a possibility that an offence may have been committed does not constitute sufficient notice to start the limitation clock. There must be something more concrete, amounting to reasonable grounds for belief.
- Where an offence relates to off-site work conditions, SafeWork NSW's knowledge of on-site practices at separate premises does not necessarily constitute notice of the off-site offence, particularly where the nature of the activities and conditions differed.
- In refusing leave to appeal, the Court of Criminal Appeal confirmed that an appeal out of time will not be granted where the proposed appeal is futile. The futility of the substantive ground is sufficient to defeat the application for leave.
- The Court applied and affirmed the test stated in Prime Marble & Granite Pty Ltd v Safework NSW [2024] NSWCCA 105 for determining when an offence "first comes to the notice of the regulator" for limitation purposes under the WHS Act.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(1), 30, 32, 232
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 3.5
Cases:
- Prime Marble & Granite Pty Ltd v Safework NSW [2024] NSWCCA 105
- SafeWork NSW v Edstein Creative Pty Ltd [2024] NSWDC 178
- Witheyman v Van Riet (2008) 185 A Crim R 492; [2008] QCA 168