Citation: SafeWork NSW v Deemah Stone Pty Ltd [2025] NSWDC 248
Court: District Court of NSW
Date: 10 July 2025
Judge: Russell SC DCJ
Background
The defendant operated a stonemasonry business involving the cutting, grinding, and polishing of manufactured and natural stone products. This work generated airborne respirable crystalline silica (RCS), a substance associated with silicosis and other respiratory diseases. SafeWork NSW inspectors visited the premises on multiple occasions between 2019 and 2022, issuing Improvement Notices each time and later confirming compliance.
SafeWork filed a Summons on 29 November 2023 alleging that the defendant breached its primary health and safety duty under section 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act), constituting a Category 3 offence under section 33. The alleged offence period ran from 20 February 2021 to 21 February 2022, with the prosecution grounded in observations made during an inspection on 21 February 2022.
The defendant filed a Notice of Motion seeking dismissal, arguing the Summons was filed outside the two-year limitation period prescribed by section 232 of the WHS Act. It contended that because similar breaches had been observed in 2019 and 2020, SafeWork's knowledge of those earlier breaches started the limitation clock running well before the Summons was filed.
Legal Issues
- Whether the Summons was filed within the two-year limitation period in section 232 of the WHS Act.
- Whether the breaches alleged in the Summons were the same as, or distinct from, those observed during the 2019 and 2020 inspections.
- Whether SafeWork's knowledge of earlier, similar breaches triggered the limitation period for the 2022 prosecution.
Decision
Issue 1: Time-barred earlier breaches
The court confirmed that SafeWork could not prosecute the defendant for breaches observed during the May 2019 inspection, as the two-year limitation period expired on 10 May 2021. Similarly, breaches observed during the November 2020 inspection could not be prosecuted, as the limitation period expired on 13 November 2022, more than a year before the Summons was filed (at [49]-[50]). The relevant inquiry, confirmed by the Court of Criminal Appeal in Prime Marble and Granite Pty Ltd v SafeWork NSW [2024] NSWCCA 105, is when the regulator first obtained notice of the specific offence alleged in the Summons (at [49]).
Issue 2: Whether the 2022 observations constituted new and distinct breaches
The court found that the three visits disclosed distinct and different risks on each occasion. The 21 February 2022 inspection revealed a significant accumulation of silica dust adjacent to the water treatment system, a condition not present in 2019 or 2020 and therefore constituting a new risk and breach (at [52]). The observation of a bearded worker wearing an inappropriate disposable P2 respirator was also new, given that compliance with the 2019 RPE Improvement Notice had been confirmed (at [53]). The observation of a worker wearing a surgical-type mask rather than a P2 respirator was equally a new and different breach (at [54]).
Issue 3: Whether earlier guilt immunises against later prosecution
The court rejected the proposition that the defendant's commission of similar breaches in 2019 could immunise it from prosecution for later, distinct breaches. The court drew an analogy with forklift collision cases: it would be absurd to hold that an employer who remedied a breach in 2015 could never be prosecuted for a similar breach in 2025 (at [58]). Accepting the defendant's argument would defeat the primary object of the WHS Act, which is to protect workers through the elimination or minimisation of risks arising from work (at [59]). The two-year limitation period for the 2022 breaches commenced on 21 February 2022, and the Summons filed on 29 November 2023 was therefore within time (at [52], [60]).
Orders Made
- The Notice of Motion filed by the defendant on 16 January 2025 is dismissed.
- Costs of the Notice of Motion are reserved to be dealt with at the conclusion of the proceedings.
Key Takeaways
- The District Court confirmed that the relevant trigger for the two-year limitation period under section 232 of the WHS Act is the date the regulator first obtained notice of the specific offence alleged in the Summons, not the date of any earlier, similar breach (at [49]).
- Where a defendant complies with an Improvement Notice and standards subsequently slip, the later failure can constitute a new and distinct breach, capable of grounding a fresh prosecution within its own limitation period (at [53]-[56]).
- A defendant is not immunised from prosecution for a later breach simply because a similar breach was observed outside the limitation period; the court emphasised that holding otherwise would undermine the protective purpose of the WHS Act (at [57]-[59]).
- The distinction drawn in Prime Marble is significant: in that case there was no change in dangerous conditions from the date of first notice, whereas here each inspection revealed different hazards at different points in time (at [51]-[52]).
- Compliance with an Improvement Notice does not extinguish a past offence, nor does it prevent a new prosecution if distinct breaches later emerge from renewed non-compliance (at [45], [56]).
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW) , ss 3, 17, 19 32, 33, 47, 232
- Work Health and Safety Regulation 2017 (NSW) , cll 346, 368
Cases
- Prime Marble & Granite Pty Ltd v SafeWork NSW [2024] NSWCCA 105