HD Projects Pty Ltd v SafeWork NSW

1. [1]

   MACFARLAN JA: In a judgment of 17 December 2020, Scotting DCJ, sitting in the summary criminal jurisdiction of the District Court, found the present appellant, HD Projects Pty Ltd (“HD Projects”), guilty of an offence under s 32 of the Work Health and Safety Act 2011 (NSW) (“WHS Act”) by reason of a breach of its duties under s 19(2) of that Act (SafeWork NSW v H D Projects Pty Ltd [2020] NSWDC 765).

2. [2]

   Section 19(2) is in the following terms:

3. [3]

   The breach found by his Honour arose out of an incident at a worksite in Kellyville in Sydney at which HD Projects was to install “AFS Logicwall panels” pursuant to a contract with the principal contractor at the site, Arise Constructions Pty Ltd (“Arise”). The “other persons” at the site whose health and safety were found for the purposes of s 19(2) to have been put at risk were Mr Ken Graff and Mr Soane Sitauti who were employees of Erectus Scaffolding Pty Ltd (“Erectus”).

4. [4]

   His Honour subsequently convicted HD Projects of the offence and imposed a fine of $170,000 ([2021] NSWDC 126). HD Projects appeals against its conviction pursuant to s 5AA of the Criminal Appeal Act 1912 (NSW) which relevantly provides as follows:

5. [5]

   The parties to the present appeal proceeded upon the basis that an appeal under this section can “only succeed if the trial judge committed an error of law or applied the wrong principles in his or her fact-finding exercise” (Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 at [96]). There is a question as to whether this statement accurately describes the breadth of an appeal that can be brought in respect of an error of fact but it is unnecessary to answer the question on this appeal as neither party has put the ambit of s 5AA in issue.

6. [6]

   In relation to this question, I refer in particular to the fact that s 5AA does not confine appeals to particular types of errors, such as of law, and unlike s 5 of the same Act does not require leave to appeal on a question of fact alone. Appeals under it are accordingly unrestricted save for those limitations that necessarily arise from the nature of the decisions under challenge, for example discretionary decisions or ones based on credit findings. At least arguably, and subject to those limitations, the principles stated in Warren v Coombes (1979) 142 CLR 531 at 552; [1979] HCA 9 (also see Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [87]) are applicable to appeals under s 5AA, notwithstanding that the section provides for appeals from criminal convictions and does not state (as it did prior to 2000) that appeals under it are to be by way of “rehearing” (see Histollo Pty Ltd v Director-General of National Parks & Wildlife Service (1998) 45 NSWLR 661; (1998) 103 LGERA 355 at 663–666 and 672–678).

7. [7]

   Whilst there are important differences between appeals in the strict sense (that is, not described in the relevant legislation as other than an “appeal”) and appeals by way of rehearing, those differences do not appear to include a restriction in the former, but not in the latter, to particular types of factual challenges (see Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 625–631; [1976] HCA 62; Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23]; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [57].)

8. [8]

   HD Projects appeals on the following five grounds (it having been granted leave in the course of the appeal hearing to add the fourth and fifth grounds):

   1. (1)

      The trial judge erred in finding that the work of “craning” the wall panels from the ground floor level to the first floor was, for the purposes of s 19(2), “part of the conduct of [HD Projects’] business or undertaking.”

   2. (2)

      In the alternative, the trial judge erred in finding that Messrs Graff and Sitauti were “other persons”, for the purposes of s 19(2).

   3. (3)

      The trial judge erred in finding that Mr Marc Dessens was an employee or agent of HD Projects and that his conduct was the conduct of HD Projects by reason of s 244 of the Act.

   4. (4)

      The trial judge erred in finding that Mr Dessens acted within the scope of his employment or within his actual or apparent authority.

   5. (5)

      The trial judge erred in finding that Mr Hamburger knew or ought to have known that HD’s workers were participating in the cranage work.

9. [9]

   HD Projects’ appeal thus did not include any challenge to the trial judge’s findings in relation to breach of duty, this being an issue with which the trial and his Honour’s judgment were to a significant extent concerned.

10. [10]

    For the reasons given below HD Projects’ five grounds of appeal should each be rejected and its appeal should therefore be dismissed.

The factual circumstances

1. [11]

   Arise was the principal contractor for the construction of 58 townhouses at Kellyville. It subcontracted, first, HD Projects to supply and install the panels referred to above, secondly, All Cranes 4 Hire Pty Ltd (trading as Top Gun Cranes) (“All Cranes”) to operate a mobile crane and to provide the service of a crane driver and a dogman and, thirdly, Erectus to supply and install scaffolding. HD Projects employed Mr Adam Hamburger and Mr Paul Georges as foremen and obtained labour hire workers, including Mr Marc Dessens, from Hunter Labour Hire Pty Ltd (“Hunter Labour Hire”). Mr Barry Ramm was the sole director of All Cranes and on the day in question he operated the crane that lifted, or was to lift, the relevant panels to the first floor of the buildings under construction. As noted above, Mr Graff and Mr Sitauti were employees of Erectus.

2. [12]

   The panels were supplied to HD Projects by AFS Systems Pty Ltd (“AFS”) in packs of about 15 panels. The packs were wrapped in stretch plastic with wood packing on the bottom of the packs. Each panel weighed approximately 76 kilograms. AFS also supplied to HD Projects an adjustable pallet hook, which had tynes similar to those on a forklift, to enable the packs of panels to be lifted by a mobile crane onto the buildings under construction. In addition, AFS supplied a Manufacturer Instruction Manual and a Safe Work Methods Statement (“AFS SWMS”) to HD Projects.

3. [13]

   At about 8:30am on 15 December 2017 Mr Ramm commenced to operate the mobile crane at the site, lifting the packs of panels to the level 1 slab, which was one level above ground level. Mr Adam Kerr worked as a dogman on level 1 where the packs were landed. As found by the primary judge, for about two hours before the subject incident which occurred sometime between 10:30am and 10:45am, Mr Dessens assisted at ground level with the cranage work and HD Projects’ supervisor on site, Mr Hamburger, knew or should have known that Mr Dessens was doing that. At about 10:30am to 10:45am Mr Dessens undertook the task of securing a pack of panels to the pallet hook. He did so by inserting the pallet hook’s tynes into the second panel from the bottom of the pack, leaving the bottom panel of the pack held in place only by the plastic wrapping. In the course of the pack being lifted by the crane, the bottom panel detached from the pack and struck Mr Graff and Mr Sitauti who were standing below discussing what work they would do that afternoon. Mr Graff sustained serious injuries.

4. [14]

   The contract between HD Projects and Arise provided for HD Projects to supply and install the panels and for Arise to arrange cranage.

5. [15]

   HD Projects’ Work Health Safety Plan (“WHS Plan”) noted that it would “supply and take delivery of AFS panels”. Its Safe Work Method Statement (“HD SWMS”) plan purported to “Break the job down into steps”, Step 7 being “Taking delivery of the AFS panels”. In relation to that step, the plan identified control measures including the setting up of an exclusion zone, and stated: “Only qualified dogman to attach and direct load. Dogman to shift attachment ring”. The “person who will ensure this happens” was stated to be “Head Contractor, Crane Operator, Dogman, HD Employee directing delivery”.

6. [16]

   As noted above, Mr Dessens was a labour-hire worker made available to HD Projects by Hunter Labour Hire, from which HD Projects sourced workers from time to time. Before Mr Dessens was made available, HD Projects advised Hunter Labour Hire that Mr Dessens’ duties on the site were to be “general labouring duties such as keeping the work area clean, moving material, and assisting HD Projects’ installers where required”.

7. [17]

   In its post-incident response to a s 155 notice under the WHS Act requiring the provision of information, Hunter Labour Hire described Mr Dessens’ position with it as “General labourer” and his duties on site in the same terms, that is, “to perform general labouring duties such as keeping work area clean, moving materials and assisting HD installers where required”.

8. [18]

   HD Projects’ response to the s 155 notice described Mr Dessens’ duties on site as involving “cleaning and de-bracing walls”. It denied that it instructed Mr Dessens to “sling the AFS packs”.

9. [19]

   In his record of interview with investigators Mr Dessens said that he had been told to load the panels onto the pallet lifter “by one of the HD Project guys” although he could not remember which one. He said later in the interview that he thought that someone from HD Projects told him to do it but “maybe” it was a man who was operating the crane. He also said that he never signed the HD SWMS or had even seen the document before despite his name appearing amongst others at the end of that document.

10. [20]

    The HD WHS Plan provided that Mr Hamburger was to be the “project supervisor” on site and to be responsible for safety and other matters. Mr Hamburger had signed the AFS Daily Run sheet delivery records to acknowledge delivery of the panels to HD Projects that morning.

11. [21]

    In his Injury Report completed shortly after the subject incident, but on the same day, Mr Hamburger stated: “Crane only had one dogman he was on slab and Marc was loading them from below” (sic). Mr Hamburger convened a toolbox meeting later on the same day, the minutes of which include the statement: “Nobody to hook loads up even with panel lifters let dogman do” (sic). Mr Hamburger did not give evidence at the trial.

Work Health and Safety Act 2011 (NSW)

1. [22]

   The following provisions of the WHS Act are relevant to the appeal.

2. [23]

   Section 7: Meaning of “worker”

3. [24]

   Section 19: Primary duty of care

4. [25]

   Section 32: Failure to comply with health and safety duty—Category 2

5. [26]

   Section 244: Imputing conduct to bodies corporate

The prosecution’s case

1. [27]

   SafeWork NSW’s summons filed in the District Court on 12 December 2019 gave the following details of the offence charged:

2. [28]

   The particulars contained in Annexure A included the following:

3. [29]

   Pursuant to r 53.26(3) of the District Court Rules 1973 (NSW), a Statement of Facts signed by the prosecutor was lodged at the District Court with the summons. It included the following allegations:

The trial judgment

1. [30]

   As noted above, the trial judgment was to a significant extent concerned with the issue of breach of duty that does not arise on appeal. The references below do not therefore extend to discussion of that issue.

2. [31]

   The judgment included the following presently relevant findings and observations:

3. [32]

   The trial judge then turned to Issue 1 which was whether the work done by Mr Dessens in assisting with the cranage was part of the conduct of HD Projects “business or undertaking” for the purposes of s 19(2) of the WHS Act. HD Projects contended that this had not been alleged and could not therefore be found by his Honour because the prosecutor had simply pleaded that HD Projects was an “installer” of the panels, not that it was involved in the cranage work as part of its business or undertaking.

4. [33]

   His Honour first rejected an argument that Mr Dessens was not participating in HD Projects’ business or undertaking because HD Projects was not contractually obliged to the principal contractor to do cranage work. His Honour referred in this context to WorkCover Authority of NSW (Inspector Moore) v E & T Bricklaying Pty Ltd [2015] NSWDC 369 where Kearns DCJ concluded that by requiring an employee to undertake a task the employer accepted that the task was part of its work for that day and thus part of its business or undertaking.

5. [34]

   The trial judge noted that in E & T Bricklaying there had been an express direction to the employee, when there had not been one in the present case, but was nevertheless satisfied based on s 244 of the WHS Act:

6. [35]

   The trial judge relied on s 244 of the WHS Act to conclude that Mr Dessens’ conduct was attributable to HD Projects. The respondent prosecutor however said on appeal that it had not relied on this section at the trial and indicated that it did not therefore seek to uphold the decision below in reliance on it. It is therefore unnecessary to refer to all that his Honour said on the topic. His factual findings as follows are however relevant to the issues that do arise on the appeal. In finding that Mr Dessens was both an “employee” and an “agent” of HD Projects for the purposes of s 244, his Honour said:

7. [36]

   The trial judge then turned to Issue 2 which was whether Mr Graff and Mr Sitauti were “other persons” within the meaning of s 19(2) of the WHS Act, that is, persons whose safety was endangered but who were not workers engaged in the conduct of HD Projects’ business or undertaking. His Honour rejected HD Projects’ argument that Arise, All Cranes, Erectus and HD Projects were carrying on a joint venture in the form of a partnership, within the concept of a “person conducting a business or undertaking” such that Mr Graff and Mr Sitauti were “workers” of each of those companies, including HD Projects. His Honour found that the usual indicia of a partnership were absent and was satisfied that “Arise, [All Cranes] Erectus and [HD Projects] operated independently of the other[s] and the only obligations owed by any of them inter parte were contractual in nature and specifically related to the project”.

8. [37]

   His Honour then turned to Issue 3 which concerned breach of duty. In that context, his Honour rejected HD Projects’ submission that Step 7 stated in HD Projects’ SWMS (see [15] above) referred only to the task of unloading the panels from a truck with a crane when they were delivered to the site and did not therefore extend to the cranage of the panels to upper levels of the buildings. His Honour continued:

Ground 1: Was Mr Dessens’ cranage work part of the conduct of HD Projects’ business or undertaking?

1. [38]

   HD Projects’ case on appeal commenced with a submission that was also put to the trial judge (see [8(1)] above). That was in effect a pleading point, that it was not open to the trial judge to find that what Mr Dessens did was part of HD Projects’ conduct of its business or undertaking because the prosecutor’s “pleaded case” was that HD Projects was only an installer of the panels, not that its business or enterprise extended to the cranage work.

2. [39]

   I agree with the trial judge that, although the prosecutor’s summons “could have been more explicit”, it was sufficiently clear at the trial that the prosecution case as propounded was broader than HD Projects contended on appeal that it had been. Read as a whole, the summons clearly conveys that the prosecution was seeking to hold HD Projects responsible for Mr Dessens’ involvement in the cranage work. As the “Details of Offence” stated on the first page of the summons indicate, the impugned conduct was alleged to be “part of the conduct of the defendant’s business or undertaking”. That the prosecution alleged that this included Mr Dessens’ conduct on behalf of HD Projects is apparent from particulars 10(f) and (g) which expressly refer to Mr Dessens (see [28] above). The position was put beyond doubt by the Statement of Facts filed with the summons (see [29] above). Its lodgement with the Court and service on HD Projects with the summons constituted a notification of the factual matters on which the prosecution was founded and which subsequently formed the basis of the trial judge’s decision. Mr Dessens’ alleged role is made clear in that document (see particularly [20]).

3. [40]

   Like the pleading point, HD Projects’ substantive argument advanced in support of this ground of appeal must be rejected. The reasons are as follows.

4. [41]

   His Honour’s factual findings were relevantly to the following effect:

   1. (1)

      HD Projects was contractually bound to Arise to supply and install the panels, but it was not contractually obliged to do the cranage work ([11] above).

   2. (2)

      HD Projects, through its foreman on site, Mr Hamburger, took delivery of the relevant panels at the site on the morning of the incident ([20] above).

   3. (3)

      The panels were to be installed on an upper floor (the first floor) of one of the buildings under construction ([11] above).

   4. (4)

      This required them to be lifted by All Cranes’ mobile crane that was on site ([11]–[12] above).

   5. (5)

      All Cranes’ dogman, Mr Kerr, was situated on the first floor, where the packs were, and were to be, landed ([13] above).

   6. (6)

      A worker was needed at ground level to attach the loads to the crane mechanism but All Cranes did not have any further worker available on site to do this ([21] above).

   7. (7)

      If HD Projects’ installation was to proceed it was “essential” that one of HD Projects’ workers assist at ground level in attaching the loads to the crane ([37] above).

   8. (8)

      Mr Dessens was made available to HD Projects by a labour hire company to perform “general labouring duties” ([16]–[17], [31] above).

   9. (9)

      Mr Dessens was on site for that purpose at the relevant time and under the control and supervision of HD Projects’ site foreman, Mr Hamburger ([37] above).

   10. (10)

       According to Mr Dessens, either an HD Projects employee or possibly someone working the crane told him to assist in attaching the packs of panels to the crane hook at ground level ([19] above). HD Projects denied that it did this ([18] above).

   11. (11)

       Mr Hamburger “knew or ought to have known” that Mr Dessens undertook that task ([37] above). Mr Hamburger was HD Projects’ “project supervisor” on site and under its WHS Plan was responsible for safety on site ([20] above).

   12. (12)

       Mr Hamburger knew that the cranage work was a necessary precursor to the installation of the panels ([37] above).

5. [42]

   In my view it is clear that in these circumstances Mr Dessens assisted with the cranage as part of the performance of his general labouring duties on the site. There is no inconsistency between a worker’s employment by a labour hire company and the hirer “exercis[ing] day-to-day control” over the worker’s activities and “treating him [or her] to all intents the same as its employees” (see TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1; [2003] NSWCA 47 at [41]). Indeed, this is commonly what occurs when labour is hired by a host business from a labour hire company.

6. [43]

   The trial judge found that Mr Dessens was “acting within the scope of his employment or within his actual or apparent authority” in performing the cranage work (see Judgment [113]). As his Honour held, it was reasonable for Mr Dessens to conclude (and it is indeed reasonable for it to be concluded on an objective basis) that, in the circumstances described in [41] above, this work (at least to the extent of attaching the pallet hook) fell within the ambit of the work Mr Dessens was present at the site to do, that is, generally to assist with progressing HD Projects’ business activities there. What he did was essential to be done if work that HD Projects had contracted to perform was not to come to a halt.

7. [44]

   On his Honour’s finding, Mr Dessens was doing his cranage work at the site for one to two hours before the incident in question occurred and HD Projects’ supervisor, Mr Hamburger, was on site and “in control of” HD Projects’ work (Judgment [136], [164]). The inference that his Honour drew that Mr Dessens was acting within the scope of his duties and as part of HD Projects’ business or undertaking was in the circumstances compelling, as was his Honour’s finding that Mr Dessens acted with actual or apparent authority (Judgment [112]–[114] quoted in [35] above]).

8. [45]

   The conclusion that Mr Dessens attached the pallet hook in the course of his employment by HD Projects is supported by the facts that the hook was in the possession of HD Projects, having been provided to it by the supplier of panels, AFS, (see [12] above) and that another of HD Projects’ workers, Mr Sam Elarchi, was involved in the cranage operation in that he was situated on the first level “directing where the packs of panels were to be landed” (see [37] above).

9. [46]

   As well, HD Projects’ WHS Plan, covering the work performed on the day in question, treated cranage issues as part of HD Projects’ work in taking delivery of the panels, as evidenced by the control measures which included requiring a qualified dogman to attach and direct the load (see [15] above). The trial judge’s finding to this effect (see [37] above) was not challenged on appeal. Further, after the incident, HD Projects’ foreman, Mr Hamburger, completed an Injury Report which appeared to accept by implication that the cranage had been part of HD Projects’ business (see [21] above). He certainly did not suggest otherwise, in circumstances in which it would have been very much in HD Projects’ interests to disclaim responsibility for what occurred.

10. [47]

    I add, to allude to a concept frequently referred to in cases concerned with vicarious liability, that in performing the cranage work, Mr Dessens was not in any sense on a “frolic of his own” (see New South Wales v Lepore (2012) 212 CLR 511; [2003] HCA 4 at [40]–[41]; Prince Alfred College Incorporated v ADC (2016) 258 CLR 134; [2016] HCA 37 at [80]). To the contrary, Mr Dessens’ conduct was closely connected to, and undoubtedly intended to advance, the interests of HD Projects’ business. That as an unskilled worker he undertook work that should have been the province of a skilled worker did not take it outside the scope of HD Projects’ business or undertaking.

11. [48]

    To the extent that Mr Dessens performed cranage work on the relevant day, the scope of HD Projects’ business or undertaking extended to include that work, at least pro hac vice (that is, for a particular occasion only). That Latin term is used frequently to describe temporary employment of a worker, as where a labour hire worker becomes the employee of the hirer for a limited period (Sappideen, O’Grady and Riley, Macken’s Law of Employment (9th ed, 2022, Law Book Co of Australasia) at [3.70]). That can occur if the worker becomes subject to the hirer’s directions, not only as to what work is to be done, but also as to how it is to be done (see Mersey Docks and Harbour Board v Coggins & Griffiths (Liverpool) Limited [1947] AC 1 at 12 and 17).

12. [49]

    It is however unnecessary in the present case to consider whether Mr Dessens was or became an employee of HD Projects, temporarily or otherwise (see Construction, Forestry, Maritime, Mining and Energy Union v Personnel Contracting Pty Ltd [2022] HCA 1; (2022) 96 ALJR 89), nor is it necessary to consider whether HD Projects was vicariously liable to a third party in respect of Mr Dessens’ conduct (see Prince Alfred College Incorporated at [80]–[85]) or would have been liable to Mr Dessens in negligence if he had been injured in the incident (see TNT Australia at [41]).

13. [50]

    Instead, it is sufficient to conclude that, by reason of the circumstances described in [41], Mr Dessens was involved in the cranage work “on behalf of” HD Projects, to use a neutral expression which is not one of strict legal meaning (see Walplan Pty Ltd v Wallace (1985) 8 FCR 27 at 37; [1985] FCA 619). As the trial judge held, that involvement clearly occurred as part of the conduct of HD Projects’ business or undertaking on the relevant day. The role assigned to Mr Dessens, being that of a general labourer, and the close connection between what he did and HD Projects’ business interests on that day (having the panels placed in a position where they could be installed) “not only provided an opportunity but also an occasion” for his inept attachment of the pack of panels to the crane (Prince Alfred College at [80]).

14. [51]

    There is no basis in the evidence for concluding that Mr Dessens provided his services to HD Projects as a contractor or subcontractor. Mr Dessens was in a different position to the refrigerator mechanic with whom Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161; [2006] HCA 19 was concerned. That mechanic was found to have supplied his services “as a principal pursuing his own business or as an employee of his own company pursuing its business” (at [33]). Unlike Mr Dessens the mechanic was a skilled worker who supplied his own tools and equipment and brought his skills to bear upon the work that was to be done and, importantly, the way in which it was to be done (at [32]; see also ZG Operations Australia Pty Ltd v Jamsek [2022] HCA 2 at [88]; (2022) 96 ALJR 144).

15. [52]

    If Mr Dessens had been a contractor or subcontractor, it would have been arguable that under the general law HD Projects’ business or undertaking did not extend to embrace his conduct but, without other reasons for it so extending, would only have extended to the fact of his engagement as distinct from the work he did pursuant to the engagement. However, the statutory definition of “worker” in s 7 of the WHS Act expressly includes a subcontractor (see [22] above) and might have required a different conclusion in the context of the WHS Act.

16. [53]

    Of particular relevance to the present case is however subsection (d) of that definition:

17. [54]

    In light of its opening words, and subsection (d), the definition thus contemplates that a person may carry out work “for a person conducting a business or undertaking” without the person being an employee of the business. This accords with good sense: a person who assists another person in carrying on a business may, for example, be a friend acting gratuitously and/or not subject to the other person’s directions as to how the work is to be done. In that situation the friend is not an employee or contractor but is nevertheless doing work for the business owner and thus likely to be acting on behalf of the owner in progressing the ends of the business and acting within its ambit.

18. [55]

    The position of a labour hire worker who does not, for whatever reason, become an employee of the hirer, whether temporary or permanent, is analogous. Thus, in the present case, whether or not Mr Dessens was an employee of HD Projects, the factual findings set out in [41] above, indicate that his work was carried out, for the purposes of s 19(2) of the WHS Act, “as part of the conduct” of HD Projects’ “business or undertaking”. If it did not already extend that far, that business or undertaking extended pro hac vice to his work. He was a “worker” in the business of the type described in paragraph (d) of the definition of “worker” in s 7(1) of the WHS Act.

19. [56]

    Moreover, the language used in s 19(1) of the Act supports these views, notwithstanding that that subsection is not directly relevant in the present case. Section 19(1) makes it clear by its express terms that, for the purposes of that subsection, and consistently with the view I have expressed about s 19(2), that relevant workers do not have to be persons “engaged” by the business owner but may simply be ones “whose activities in carrying out work are influenced or directed” by that owner (see s 19(1)(b)).

20. [57]

    For these reasons, Ground 1 should be rejected.

Ground 2: Were Messrs Graff and Sitauti “other workers” for the purposes of s 19(2)?

1. [58]

   In the event that Ground 1 was unsuccessful, HD Projects accepted that it owed a duty in relation to Mr Graff and Mr Sitauti under s 19(1) but denied that it owed such a duty under s 19(2), which was the only subsection that the prosecutor relied upon. It contended that Messrs Graff and Sitauti fell within the statutory definition of “worker” in relation to HD Projects (as well as Erectus), so as to bring them within the exclusive ambit of s 19(1), with the consequence that they could not be “other persons” for the purposes of s 19(2). It submitted:

2. [59]

   This submission however proceeds on an erroneous assumption that the trial judge found that Mr Dessens’ work fell within the scope of the business or undertaking of HD Projects because that business or undertaking embraced all, or at least most of, the other work done on site, including the erection of perimeter scaffolding. In fact, the finding was based on the more specific finding that Mr Dessens involved himself in the cranage work, at least to the extent of attaching packs of panels to the pallet hook. There was no evidence that anything similar occurred in relation to the scaffolding, such that any part of the scaffolding work became part of HD Projects’ business or undertaking.

3. [60]

   As noted in [11] above, Arise Constructions separately subcontracted the supply and installation of the panels to HD Projects, and the supply and installation of the scaffolding to Erectus. As the trial judge found, there was no basis for concluding that these companies were in partnership or joint venture. Nor was there any other basis for finding, as HD Projects contended on appeal, that there was a linkage between the businesses that rendered the scaffolding work part of HD Projects’ business.

4. [61]

   In reliance on the reference in s 19(1) of the WHS Act to persons who could be “influenced or directed” by the person conducting a business or undertaking, HD Projects submitted that it was s 19(1) and not s 19(2) that imposed a relevant duty on it, because, it said, HD Projects was able to influence or direct the scaffolding employees and Messrs Graff and Sitauti were therefore “workers” in its business and not “other persons”. Whether or not that was so, the submission is answered by the fact that the reference in s 19(1) to influence or direction is to the activities of the person carrying out work in the relevant business or undertaking: the closing words of s 19(1) (see [24] above) confines the workers referred to in the subsection to those “at work in the business or enterprise”. The scaffolding company employees were not carrying out work in HD Projects’ business but in that of Erectus.

5. [62]

   For these reasons, ground 2 should be rejected.

Ground 3: Was Mr Dessens an employee or agent of HD Projects and was his conduct that of HD Projects by reason of s 244?

1. [63]

   The trial judge’s finding that Mr Dessens was an employee or agent of HD Projects for the purposes of s 244 of the WHS Act, with the result that his conduct was imputed to HD Projects, was unnecessary in light of his factual findings as to what occurred on site on the day in question. As I have said above (see [55] above) s 19(2) was satisfied whether or not Mr Dessens was an employee, temporary or otherwise, of HD Projects. Similarly, that was the case irrespective of any characterisation, for the purposes of s 244, of Mr Dessens as an “agent” of HD Projects.

2. [64]

   SafeWork NSW said on appeal that it did not rely on s 244 at the trial (although, as Cavanagh J points out below, there is at least doubt as to the correctness of this proposition). In these circumstances and as SafeWork NSW did not rely on the section on the appeal, this Court needs to proceed on the basis, favourable to HD Projects, that the trial judge’s reliance on s 244 was erroneous. It was not however a material error because there was no error in his Honour’s finding of guilt, it being well supported by the factual findings that his Honour made. These proved the case against HD Projects beyond reasonable doubt and there was no other basis upon which it could be said that a miscarriage of justice occurred (see Stokes v The Queen (1960) 105 CLR 279 at 284–5; [1960] HCA 95; Conway v The Queen (2001) 209 CLR 203; [2002] HCA 2 at [6]–[40], [76]; Hofer v The Queen [2021] HCA 36; (2021) 95 ALJR 937, particularly [41], [47], [115]–[118], [120]; Edwards v the Queen [2021] HCA 28 at [74]; (2021) 95 ALJR 808; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [48]).

Ground 4: Was Mr Dessens acting within the scope of his employment or within his actual or apparent authority?

1. [65]

   HD Projects was given leave in the course of the appeal hearing to add this ground of appeal.

2. [66]

   I have sufficiently addressed the ground in [43]–[47] above. For the reasons stated there, it should be rejected.

Ground 5: Did Mr Hamburger know or ought he have known that Mr Dessens was participating in the cranage work?

1. [67]

   This ground also was added, by leave, in the course of the appeal hearing.

2. [68]

   The matters to which I have referred in [43]–[47] above indicate that his Honour was well-justified in making the challenged finding. Accordingly, this ground of appeal should also be rejected.

3. [69]

   As none of the grounds of appeal has merit, I propose that the appeal be dismissed.

4. [70]

   HAMILL J: I have had the considerable advantage of reading the judgments of Macfarlan JA and Cavanagh J in draft form. I agree with their Honours that the appeal must be dismissed. I agree with the reasons provided by the presiding Judge and with the additional observations made by Cavanagh J. I perceive no conflict in their Honours’ reasoning. I agree with the orders proposed by Macfarlan JA.

5. [71]

   CAVANAGH J: I have had the benefit of reviewing the judgment of Macfarlan JA in draft. I agree with the orders proposed by his Honour.

6. [72]

   I wish to add the following observations in respect of appeal Ground 3 and its significance to the outcome of this appeal.

7. [73]

   The appellant maintains that, as the respondent concedes error under Ground 3, the appeal must be upheld and the judgment, conviction and penalty imposed must be quashed. That is put on the basis that the imputation of Mr Dessens’ conduct to the appellant pursuant to s 244 of the Work Health and Safety Act 2011 (NSW) (WHS Act) was integral to the finding that the risk was from work carried out by the appellant.

8. [74]

   In its written submissions in this Court, the respondent submitted that “the prosecution did not contend at trial that Mr Dessens was an employee or agent of the appellant for the purposes of s 244 of the WHS Act and accepts that Mr Dessens was not an employee or agent of the appellant …”

9. [75]

   The submission that the prosecutor did not contend at trial that Mr Dessens was an employee or agent is not entirely correct. Indeed, the prosecutor made the following submissions:

10. [76]

    However, the prosecutor went on to say:

11. [77]

    There may be some ambiguity in the prosecutor’s submissions but his Honour’s determination was responsive to the submissions rather than a finding made without regard to any submission made by the respondent at trial.

12. [78]

    Having said that, in my view the appellant overstates the significance of the s 244 finding.

13. [79]

    In a prosecution such as this, the prosecutor proceeds by way of summons filed in the District Court, annexed to which are particulars of the alleged offending. Further, the prosecutor relies on a statement of facts filed at the same time as the filing of the summons.

14. [80]

    It is necessary that the particulars be sufficiently clear so that the defendant understands the case that it is required to meet. In Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288 at [54], I said:

15. [81]

    However, unless the case is run on a different basis or a particular is in some way integral to the offence (see by analogy R v Radic [2001] NSWCCA 174; (2001) 122 A Crim R 70 at [32]-[33]), it is not necessary that the prosecutor establish each of the particulars of breach in order to secure a conviction. The prosecutor is only required to establish that a defendant failed to comply with a duty (in this case the duty arising under s 19(2) of the WHS Act).

16. [82]

    In this matter, the prosecutor particularised eight breaches and commenced the particulars in paragraph 10 as follows:

17. [83]

    The error which has been accepted by the respondent in respect of s 244 of the WHS Act only affects such of the particulars as are dependent upon the finding that Mr Dessens’ conduct is imputed to the appellant. Indeed, the prosecutor identified this as I have referred to at [76].

18. [84]

    Section 244 could not be relevant to a number of findings on breach of s 19(2).

19. [85]

    As his Honour found, Mr Hamburger (the appellant’s supervisor) was on site on the morning of the incident and in control of the appellant’s work and he ought to have known that the appellant’s workers were participating in the cranage work. He was responsible for supervising the appellant’s workers.

20. [86]

    The appellant knew that the risk identified in its Safe Work Method Statement was not being controlled as intended because there was no exclusion zone in place for the cranage work.

21. [87]

    Providing the Manufacturer Instruction Manual in relation to the pallet hook was a reasonably practical step, as was identification of the tasks that Mr Dessens was prohibited from undertaking.

22. [88]

    Further, for the reasons identified by Macfarlan JA in respect of appeal Ground 1, the finding that Mr Dessens’ cranage work was part of the conduct of the appellant’s business or undertaking was not dependent on the imputation pursuant to s 244 of the WHS Act.

23. [89]

    At trial, the respondent asserted that the appellant “could not disown Mr Dessens” because of s 244 of the WHS Act, but its contention that Mr Dessens’ work was part of the conduct of the appellant’s business or undertaking was not dependent on the imputation pursuant to s 244.

24. [90]

    Whilst Mr Dessens was not an employee, he was working there on behalf of the appellant as a labour hire employee and was acting within the scope of his authority when performing work on the site.

25. [91]

    The appellant’s contention that he was off “on a frolic of his own” must be rejected (see Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95 at [93]-[95]).

26. [92]

    As identified by Macfarlan JA, the erroneous finding in respect of s 244 of the WHS Act did not and could not have had a material effect on the ultimate conclusion of the trial judge as to the guilt of the appellant (see Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 at [102]).

27. [93]

    In the circumstances, the appeal should be dismissed.