SafeWork NSW v Prime Marble & Granite Pty Ltd [2024] HCATrans 83 (25 November 2024)

Last Updated: 25 November 2024

[2024] HCATrans 83

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No 90 of 2024
No 91 of 2024

B e t w e e n -

SAFEWORK NSW

Applicant

and

PRIME MARBLE & GRANITE PTY LTD

Respondent

Applications for special leave to appeal

GAGELER CJ
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON MONDAY, 25 NOVEMBER 2024, AT 10.00 AM

Copyright in the High Court of Australia
GAGELER CJ: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR J.V. AGIUS, SC appears with MR C.T. MAGEE for the applicant. (instructed by Legal, Department of Customer Service (NSW))

MR R.C. PONTELLO, SC appears for the respondent. (instructed by KDA Legal)

GAGELER CJ: Mr Agius.

MR AGIUS: Thank you, your Honour.

GAGELER CJ: Mr Agius, it would be helpful if you were able to identify exactly where in the judgment of Justice Harrison you say we find the error.

MR AGIUS: Yes, page 15, paragraph 22, where his Honour accepts Prime Marble’s submissions that:

in November 2017, SafeWork had notice that the individual workers referred to in the Workplace Hygiene Monitoring Report were exposed to the risk of serious lung disease –

In our submission, the report is not evidence that any workers were exposed to the risk of serious lung disease based on anything in the report. The next one is at page 16, paragraph 24:

Unlike cases where the offending attaches to conduct directed towards an individual, the gravamen of an offence contrary to s 32 of the Act is not concerned with to whom that conduct is directed. Rather, it is the failure to do something, which creates a risk. It is the creation of that risk, and any worker being exposed to it, which establishes the offence.

In our respectful submission, that is not an in‑time or appropriate application of section 32 of the Act. Section 32 of the Act, which your Honours will find on page 7 of the judgment, is set out:

A person commits a Category 2 offence if

(a) the person has a health and safety duty, and

(b) the person fails to comply with that duty, and

(c) the failure exposes an individual to a risk of death or serious injury or illness.

So, section 32 is concerned with the exposure of:

an individual to a risk of death or serious injury or illness –

That is an important point we will come to in our submissions.

GAGELER CJ: But is that not what Justice Harrison says at paragraph 33, second sentence?

MR AGIUS: Our position is that what his Honour said in 33 and 34 was also in error. At 33:

the relevant inquiry must be directed to the question of when the regulator first gets notice of the offence alleged in the summons commencing the proceedings.

We agree with that statement, but his Honour loses focus on that and does not consider the offence alleged in the summons commencing the proceedings.

GAGELER CJ: Let us just stay with the section 32 construction point for a moment. Does not his Honour, in the second sentence of paragraph 33, answer the construction point in the way that you say is correct?

MR AGIUS: Yes.

GAGELER CJ: All right. Is there any other question of construction?

MR AGIUS: No.

GAGELER CJ: All right. Is it a question of fact, Mr Agius? Is it a question of what is properly to be drawn from the November 2017 report?

MR AGIUS: That is a significant question of fact that arises in this case.

GAGELER CJ: Apart from that, is there another question that arises?

MR AGIUS: Yes. The other question that is posed is whether or not his Honour in the Court of Criminal Appeal was correct to find that having notice of what occurred on the 17th and what is reported upon in the report is not notice of the offence that is alleged in the summons. Our position is that the report did not identify any offence against section 32 of the Act. The report dealt only with a breach of the regulation.

STEWARD J: Mr Agius, could I ask you about the report. What do you say about the respondent’s reliance upon the finding in the report which is – this is the quote:

“Overall, the personal air monitoring results indicate that all workers doing polishing tasks at Prime Marble & Granite are exposed to RCS dust concentrations well above the current Australian WES.

He says that was sufficient to give you notice not just of a breach of the regulations, but a breach of the provision that is invoked here.

MR AGIUS: Your Honour, we say in relation to that, one needs to look at the whole of the report and, in particular, at page 14 in the fifth paragraph:

Overall, the personal air monitoring results indicate that all workers doing polishing tasks at Prime . . . are exposed to RCS dust concentrations well above the current Australian WES. This is a regulated limit and workers may be at risk of serious health effects if not adequately protected from exposure.

The important words are “if not adequately protected from exposure”, because what we find out when we go over the page is that workers who are most at risk doing the polishing tasks – first paragraph on page 15:

appeared to regularly wear P2‑type half‑face respiratory protection during dust‑generating tasks. P2 masks have a side protection factor (APF) of 10 providing they are correctly worn for the entire duration of the task. This means that they can provide protection for exposure levels up to 10X the exposure standard for crystalline silica i.e. up to 1.0mg/m³.

Now, the WES standard was .1 milligram per cubic metre for the polishers wearing a type two half‑face respiratory protection, which is what they were doing, their protection was 10 times .1 milligrams per cubic metre. That is, 1 milligram per cubic metre. If you go to the table which is set out on page 13, each of the red indicators for “Total RCS” is under 1.0 milligrams per cubic metre.

The polishers are numbers one, two, four and six, and they are the people with the highest readings of RCS. Yes, on its face, those readings were above .10, but when one takes into account that they were wearing a mask – that is, there was adequate protection from the exposure – a consequence of being over .1 was not such as to provide evidence or, indeed, a reasonable belief that there has been a breach of section 32.

GLEESON J: What further investigations do you say would have been required after the receipt of the workplace hygiene monitoring report to enable your client to have reasonable grounds to believe an offense had been committed?

MR AGIUS: Well, the sort of investigations that led to the two summons as being laid: how long someone had been exposed to RCS; doing what kind of work during that period; what was the protection on offer for any particular worker that was doing the kind of work that is referred to in the report; what protections were in place; what monitoring of those protections was in place; was in a safe work that I identified that particular protections need to be in place.

So, before you were sufficiently on notice that an offence had been committed, you, as a prosecutor, want to know that you can prove that the employer had failed to take precautions which were reasonably open. So, one would expect further investigation to find out, in relation to, say, those six persons, how long they had been doing that work and the way in which they were doing it on the day of the test. Had they always worn masks? If not, why not? Had they taken any other protections? What was the state of ventilation in the period leading up to the day of the test, and even after the date of the test? What training and supervision had there been in place?

GAGELER CJ: Mr Agius, in April 2018, your client issued an improvement notice which, as I understand it, indicated that your client had then formed a view that there had been a breach of section 19. Is that correct?

MR AGIUS: No, it does not go that far, your Honour, with respect. It does not go so far as to say there had been a breach.

GAGELER CJ: What does it do?

MR AGIUS: It points out that they:

may be exposed to airborne RCS that can cause significant risk to the worker’s –

but it says nothing at that stage about what precautions can be taken:

tasks such as cutting, shaping, grinding . . . natural stone regularly over a long period of time may have exposed at least six (6) workers to significant levels of RCS –

but at that stage, there was no evidence about the exposure being regular over a long period of time. This is a note of caution that is being issued by the inspector as to what it is that the respondent should consider when considering its compliance with the standard. That paragraph ends:

pose a threat to their health if not adequately controlled.

What this notice does is put the respondent on notice that there needs to be adequate controls, because this is a warning: if you do not have adequate controls and you do expose workers to airborne RCS over a long period of time, that may – and here is the risk – cause a death, serious injury or serious illness. When one goes the report, one sees appendix 1, which is on page 18:

Initial exposure to silica dust will cause irritation of the eyes, nose and throat like most dusts. However, if excessive silica dust is breathed into the lungs over a period of time, it can cause damage to the lung tissue.

So, “excessive silica dust is breathed into the lungs over a period of time.” Then, the next paragraph:

The most common form of silicosis develops after long exposure to relatively low concentrations. Chronic silicosis occurs after 15 to 20 years of moderate to low exposures . . .

Acute silicosis occurs after high exposures of RCS over a few months or as long as 2 years . . . Accelerated silicosis can occur after 5‑10 years of high exposures to RCS.

The thrust of this report in the appendix is silica dust can be dangerous if people are exposed to it over a period of time. Clearly, the length of time is a significant issue; the amount of exposure is another serious issue; and long exposure to relatively low concentrations is a common form of silicosis.

The answers to the sort of questions this appendix raises cannot be found in the report. One would hope that in future there would be more investigation, but this case is not about whether or not there had been an adequate investigation; this case is really about whether or not the regulator had notice of the risk, and, in our respectful submission, they did not. They had notice that there might be a presence of a hazard on the site, but no notice that that hazard was not being properly regulated.

If you were contemplating a charge, you would want to be able to prove that it was reasonably practicable to deal with the risk in a particular way, and to do that, you would need to know a lot more about the circumstances in which the exposure took place. There were three key
construction issues in relation to section 232(1)(a). One is that it is directed to “an offence”. It is directed to an offence, and that must be the offence referred to in the summons. It cannot be any other ‑ ‑ ‑

GAGELER CJ: That is clearly accepted in Justice Harrison’s judgment, Mr Agius.

MR AGIUS: Well, the offence in the summons describes a risk, and the risk that it describes is one that speaks of inhalation over a period of time. That is the specific risk. Now, there is no evidence in the report of inhalation of high or low over a period of time. The worker to whom the duty is owed under section 19 must be the worker who is pleaded in the summons. Now, the prosecution here would not know, and did not know, that the named people in the summonses were owed a duty of care by their employer. They did not know they existed. They knew nothing about what was done in relation to any duty of care directed to those people.

The Chief Judge at Common Law held that the exposure of certain workers to the hazard when the testing was done equated with knowledge of the offence under section 32, and that cannot be right because a lot of the elements of the offence under section 32 were simply not known. Not known in respect of the six people who were the subject of the test and certainly not known to persons named in the summons.

Otherwise, we rely upon our written submissions, your Honours.

GAGELER CJ: Thank you very much, Mr Agius. Mr Pontello.

MR PONTELLO: Your Honours, the applicant’s contention that the limitation period for an offence does not commence until the regulator has notice of the precise offence as pleaded in the summons, including all essential and even non‑essential factual particulars, in our submission, is untenable because, inter alia, it allows the regulator to take an entirely reactive approach to the investigation of alleged breaches of the Work Health and Safety Act.

Now, your Honours, we submit a reactive approach is contrary to the relevant public interest, and indeed the very purpose of the limitation period, namely, to encourage the regulator to bring proceedings for breaches of the Act as quickly as possible and create certainty in that regard. Of course, the public interest requires that complaints be lodged and dealt with as expeditiously as possible.

Your Honours, in our submission, there is important distinction between the limitation period and the identification of particulars. We submit that each of those things serve conceptually different purposes. The purpose of the limitation period is to ensure that there is a prompt investigation and prosecution of offences in order to fulfil the purposes of the Act: put broadly, that employers ensure there is a safe workplace for employees. On the other hand, the latter, the provision of particulars, is concerned with a procedural right afforded to an accused to ensure a fair hearing.

Now, the latter really is only something that crystallises after the proceedings have been commenced. In other words, it is an aspect of what the investigation is meant to uncover. So, in our submission, your Honours, the purpose of the limitation period would be subverted if time commenced at the point only where the alleged offending can be sufficiently particularised for the purpose of criminal proceedings.

Taken to one extreme, the applicant’s position would also allow the regulator to artificially extend the limitation period by including non‑essential factual particulars in a summons, of which it was not initially aware. As we submit, your Honours, at the amended response at paragraph 17, in this case, a simple inquiry in 2017 would have determined that both Messrs Zhang and Geng firstly were working for the respondent at the time of the air monitoring in 2017; secondly, had been working for the respondent since 2012 and 2015 respectively; and thirdly, were in fact performing stone‑cutting tasks. The Court of Criminal Appeal referred to those three things at paragraph 13 of the judgment.

So, we submit, your Honours, the regulator had ample opportunity to investigate the alleged offences from 2017. It seems clear, your Honours – inferentially, at least – that here, for whatever reason, the regulator decided not to take the matter any further in 2017 and 2018, and that was a decision that was well within the regulator’s broad prosecutorial discretion.

GAGELER CJ: Mr Pontello, as I understand, a point sought to be made by Mr Agius is that, having received the report, there was notice of a risk but not, at that stage, necessarily, notice of a failure to do what was reasonable practicable to mitigate that risk. I thought he put an argument to that effect.

MR PONTELLO: Yes, he did. I did understand that, your Honour. Your Honour, the response to that, by way of submission, is that, really, the improvement notice that was issued in 2018 answers that issue, because it particularises the risk as including the significant risk of silicosis as well as the reasonable belief that the regulator had at that time that the particular regulation referred to in the improvement notice was being breached – in particular, the reference to:

Workers at Prime Marble & Granite Pty Ltd carrying out ongoing work with engineered and nature stone that involves tasks generating respirable crystalline silica –

and exposing workers to “significant risk” to their health, including “silicosis and other respiratory diseases”. So, the submission, your Honour, is that that was ample information to put the regulator on notice that there was a failure to comply with the statutory duty, which, of course, is the second element of the offence contrary to section 32.

STEWARD J: Mr Pontello, may I ask you a question. What do you say about Mr Agius’ submission which was that notice of the offence required at least two additional things to be known – namely, the identity of the worker in question and, secondly here, the period of inhalation of silica – as being necessary before one could form a view about whether an offence had been committed?

MR PONTELLO: Yes, your Honour. Your Honour, as to the first issue, the respondent relies on the reasoning in the authorities in Somerville and Younan to the effect that it cannot be suggested that time is not running in circumstances where a prosecutor is unaware of the identity of a defendant for a particular offence.

As we submit, your Honour, in the amended response, the same reasoning applies here, that is to say, it is not necessary for the regulator to have information as to the actual identity of any individual worker put at risk before time starts to run for the purposes of the limitation period. It is sufficient if the regulator has information that an individual who was a worker – and any individual who was a worker – was exposed to the relevant risk in breach of the statutory duty.

Your Honour, as to the second issue, that is dealt with at paragraph 26 of the amended response. Your Honour, in a nutshell, that submission really involves a disingenuous reading of the information contained in the Workplace Hygiene Monitoring Report, because, really, it cannot be suggested that the information in the report was strictly limited to one eight‑hour period on one day only and that, for example, the rest of the time, the factory was operating under laboratory‑type conditions.

Putting it another way, there is a perfectly reasonable and rational inference that can be drawn from the information contained in the report as to the testing on one day that it was not limited to one day, and that exposure to dangerous levels of RCS concentrations was at that time ongoing. That is when time started to run. That is when the proper investigations should have been conducted to determine whether there was in fact evidence capable of establishing the offence about which the regulator was on notice.

Your Honours, it is of some significance that, with the exception of the identity of each worker pleaded in each summons, the regulator was on notice of all essential legal and factual elements of the pleaded offences by 2018. Your Honours will have noticed that the applicant expressly conceded in the court below that the regulator was on notice of the first two elements of the prosecuted offences in 2017, to the point where it conceded that, as a result of the information contained in the Workplace Hygiene Monitoring Report, the time limit would have been running for an offence contrary to section 33 of the Act, the first two elements of which are identical to a section 32 offence – that was at page 15, line 17 of the transcript.

The applicant now says that apparently that was not a concession as to notice of the first two elements, but does not go on to say why. Of course, the regulator now submits, your Honours, that it was not on notice of any of the elements of the offences at paragraph 47 – but that is not correct for the reasons outlined in the amended response at paragraphs 25 and 26.

Therefore, your Honours, as to proposed ground 2, the submission is that the Court of Criminal Appeal did not decided that notice of an offence – underline the words “an offence” – contrary to section 32 was sufficient and nor did it decide, your Honours, with respect to proposed ground 3 that the limitation period commenced when the regulator had knowledge of a risk, as opposed to the risk, pleaded in the summons. That is clear from the judgment at paragraphs 47 and 48.

As I have submitted, your Honours, as to proposed ground 4, it was not necessary for the regulator to have notice of either the condition or existence of Messrs Zhang and Geng before the limitation period commenced. The Court of Criminal Appeal decided that at paragraph 43. As I have submitted, your Honours, what was required is notice that at least one individual who was a worker was exposed to the relevant risk, and we submit the regulator had notice of that both in November 2017 and again in March 2018.

Now, your Honours, to take an example removed from this case, in our submission, one can readily think of instances where the regulator might have convincing notice of an offence contrary to section 32 without being aware of the identity or even the existence of any individual worker exposed to the risk. For example, if it was provided with high quality CCTV footage of individuals working in a fireworks factory in close proximity to an open fire. Now, it cannot be said in that example that time
does not start to run with respect to workers not captured on the CCTV footage.

Your Honours, we also submit that, unlike crimes where the offending attaches to conduct specifically directly towards an individual – for example, offences against the person in Part 3 of the Crimes Act (NSW) – the gravamen of an offence contrary to section 32 is really concerned with the failure to comply with a health and safety duty which creates a risk, and it is the creation of the risk and any worker being exposed to it which establishes the offence. So, your Honours, in our submission, the criminality focuses on exposing a worker or workers to a relevant risk, rather than who in particular was exposed to the risk.

On that score, it should be borne in mind that one of the objects of the Act is to protect workers against harm to their health, safety and welfare through obviously the elimination or minimisation of risks from work. So, viewing section 32 through that prism – through the prism of that object – the precise identity of who was exposed to that relevant risk is not the gravamen of the offence, rather, the risk of harm that the failure of the defendant caused. Of course, it is not necessary that harm has already befallen a worker for an offence to have been committed.

Finally then, your Honours, on the topic of costs, if special leave is granted, the respondent asks that it be conditional upon an undertaking to pay the respondent’s costs on appeal and that there be no order for costs against the respondent on this application, given that the applicant is a statutory authority acting in the public interest and, your Honours, the respondent obviously was successful in the court below where costs were not recoverable because of section 17 of the Criminal Appeal Act.

May it please the Court.

GAGELER CJ: Thank you, Mr Pontello. Mr Agius.

MR AGIUS: This case is not about whether or not the regulator was tardy and whether or not there should have been more investigation upon receipt of the report. This case is about: what was the state of knowledge of the regulator in terms of whether or not the respondent had breached its duty of care? Under its primary duty of care the respondent had to ensure, so far as reasonably practicable, the health and safety of workers engaged or caused to be engaged, and workers whose activities in carrying out work are influenced or directed by that person while the workers are at work in the business.

Now, that raises, immediately, the question of the identity of the workers. In respect of each person said to be subject to a risk as a result of
a breach of that primary duty of care, the regulator would have to prove who they are, were they engaged, or were they caused to be engaged, were they influenced by that person who had the duty, and were they at work when they suffered the breach of duty? But the prosecutor would also have to prove, under section 32, that each of them were subjected to a pleaded risk.

In this case, the pleaded risk is not exposure over one day, the pleaded risk is exposure, in the sense of inhalation of RCS, over a long period of time. That is what is pleaded, that is the offence in the summons, and that is the offence of which the regulator has to have notice before the time limitation cuts in.

Now, this regulator did not have knowledge of any of those things. My learned friend speculates that they might have got that knowledge if they had done some more work, but that is to beg the question. This case is contrary to the finding that they needed to do more work. What the court has said is that they had enough information once they had the report. This case is they never had enough information. So, it has nothing to do with the question of whether or not the investigation was tardy. The learned primary judge understood that – I think that means my time is up.

GAGELER CJ: You can finish the sentence, Mr Agius.

MR AGIUS: Thank you, your Honour. The learned primary judge understood that exposure on one day did not create a risk. Given that he sits in dust, and given that that is consistent with what is in the report, in our respectful submission, the Court of Criminal Appeal could not have legally made a finding that exposure on one day by five of the six workers, was sufficient to get the clock ticking.

They are our submissions in reply.

GAGELER CJ: Thank you, Mr Agius. We will retire to consider the course we will take in this matter.

AT 10.40 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.44 AM:

GAGELER CJ: In our opinion, there are insufficient prospects of establishing error on the part of the Court of Criminal Appeal to warrant the grant of special leave. Special leave to appeal is refused with costs.

The Court will now adjourn until 3 December 2024.

AT 10.45 AM THE MATTER WAS CONCLUDED