Saunders Civilbuild Pty Ltd v SafeWork New South Wales (No 2)

1. [1]

   WALTON J: I agree with McNaughton J.

2. [2]

   MCNAUGHTON J: Saunders Civilbuild Pty Ltd (“the appellant”) was convicted by Scotting DCJ in the District Court of New South Wales on 10 November 2021, for an offence under s 32 of the Work Health and Safety Act 2011 (NSW) (“the WHS Act”), [1] and was sentenced on 18 May 2022. [2]

3. [3]

   On 18 October 2023, this Court (comprising Beech-Jones CJ at CL (as his Honour then was), Walton J and myself) dismissed an appeal against conviction. [3]

4. [4]

   The Notice of Appeal filed by the appellant had incorporated an appeal against sentence, but that matter was not pursued at the time of the conviction appeal. In the course of its reasons rejecting the conviction appeal, the Court gave the appellant liberty to apply with respect to the sentence appeal. By correspondence dated 8 November 2023, the appellant’s solicitors indicated that the appellant would proceed with the sentence appeal but confined the appeal to one aspect of the sentencing orders. The parties proposed directions for the sentence appeal and indicated they were content to have the appeal heard on the papers.

5. [5]

   On 16 November 2023, due to the retirement of Beech-Jones CJ at CL (as he then was) from this Court, Bell CJ directed, pursuant to s 6AA(1) of the Criminal Appeal Act 1912 (NSW), that the appeal against sentence, including any application for leave to appeal, be heard and delivered by Walton J and myself.

6. [6]

   Directions were made by Walton J, and submissions from both parties were filed and served in accordance with the directions. The matter has been determined on the papers.

The sentence

1. [7]

   At [126]-[133] of his Honour’s sentencing decision, Scotting DCJ made the following orders:

   1. (1)

      The appellant is convicted;

   2. (2)

      A fine of $375,000.00 is imposed;

   3. (3)

      Pursuant to s 122(2) of the Fines Act 1996 (NSW), 50% of the fine is to be paid to the respondent; [4]

   4. (4)

      Pursuant to s 236 of the WHS Act, the appellant must publish the Notice (“the Adverse Publicity Notice”) set out in Annexure A to the sentencing judgment by causing it to be published (with certain specifications) by a specified date in two consecutive editions of each of The Master Builders Association Magazine and The Civil Contractors Federation Bulletin (“the Adverse Publicity Order”);

   5. (5)

      The appellant is to notify the respondent by a certain date, with evidence, that the Adverse Publicity Order has been complied with; and

   6. (6)

      The appellant is to pay the respondent’s costs of the proceeding.

The appeal against sentence

1. [8]

   The appeal against sentence is confined to a challenge to the Adverse Publicity Order made by Scotting DCJ, pursuant to s 236 of the WHS Act, arising from the only successful challenge by the appellant in Ground 1 of the conviction appeal, namely a challenge to findings against the appellant based on sub-particulars 17(a)(iii) and (iv) of the Summons commencing the prosecution (“the Fall Protection Findings”). No challenge is brought as to the fine imposed by the sentencing judge.

2. [9]

   In essence, the sentence appeal seeks a quashing of the Adverse Publicity Order, to be substituted with a form of order which reflects the findings as they now stand following the appeal against conviction; in other words, that the Fall Protection Findings should no longer be included in the Adverse Publicity Notice ordered pursuant to the Adverse Publicity Order.

3. [10]

   The respondent does not oppose the orders sought by the appellant.

Consideration

1. [11]

   The Adverse Publicity Order was made pursuant to s 236(1) of the WHS Act, on the application of the respondent.

2. [12]

   Sub-sections 236 (1) and (2) of the WHS Act read:

3. [13]

   It is clear from the legislation that the Adverse Publicity Notice is to reflect the “offence”. Clearly, that means the offence so far as it was proven.

4. [14]

   As Scotting DCJ stated in the course of his Honour’s sentencing judgment, at [122]-[123]:

5. [15]

   Given the successful challenge by the appellant to the Fall Protection Findings in the conviction appeal, it is obvious that his Honour’s order providing for the publication of the Adverse Publicity Notice in its existing form should be quashed. It should be substituted with a form of order which incorporates an amended Adverse Publicity Notice (annexed to this judgment as Annexure A) reflecting the findings as they now stand following the appeal against conviction.

6. [16]

   On the appeal against sentence, I propose the Court makes the following orders:

   1. (1)

      Except as set out in order 2 below, the appellant’s appeal against sentence is dismissed and the orders made by Scotting DCJ on 18 May 2022, are confirmed, including the order made pursuant to s 122(2) of the Fines Act 1996 (NSW), that 50% of the fine is to be paid to the respondent;

   2. (2)

      Quash the Adverse Publicity Order made by Scotting DCJ on 18 May 2022, and substitute an Adverse Publicity Order to the following effect: