SafeWork NSW v Guskho Demolition and Excavation Pty Ltd [2023] NSWDC 414

SafeWork NSW v Guskho Demolition and Excavation Pty Ltd [2023] NSWDC 414

The prosecution did not prove all elements of the offences beyond reasonable doubt. The Court found that GDE engaged FSA, which held the Class A asbestos removal licence, for the friable asbestos removal work; that the information provided by Mr Khodr and the produced SafeWork notification were not proved to be false or misleading in a material particular known to Mr Khodr; and that when Mr Khodr supervised and directed workers on site he did so on behalf of FSA, which had nominated him as a supervisor, rather than on behalf of GDE. Any error in FSA nominating Mr Khodr as supervisor was not a breach by GDE.

Jurisdiction
Australia
Judgment Date
06 October 2023
Procedural Posture
Criminal Prosecution for Three Offences Under the Work Health and Safety Act 2011 (nsw) / Trial After Pleas of Not Guilty; Judgment on Liability With Final Orders Deferred
Outcome
The prosecution has not proved all of the elements of the offences beyond reasonable doubt, but final orders were not entered pending the prosecution's opportunity to consider an application under s 5AE of the Criminal Appeal Act 1912 (NSW).
Legal Topics
['requirement for Authorisation of Work' 'licensed Asbestos Removalist' 'false or Misleading Information' 'material Particular' 'strict Liability' 'supervision of Workers' 'directing or Allowing Workers to Perform Work']
['criminal Law' 'work Health and Safety' 'asbestos Regulation'] ['requirement for Authorisation of Work' 'licensed Asbestos Removalist' 'false or Misleading Information' 'material Particular' 'strict Liability' 'supervision of Workers' 'directing or Allowing Workers to Perform Work']

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Procedural Posture

Criminal Prosecution for Three Offences Under the Work Health and Safety Act 2011 (nsw) / Trial After Pleas of Not Guilty; Judgment on Liability With Final Orders Deferred

Legal Issues

  1. 1 ['Whether GDE, as a person conducting a business or undertaking, directed or allowed workers to carry out friable asbestos removal work at a workplace on its behalf when it was not authorised in accordance with the Work Health and Safety Regulation 2017 (NSW).' 'Whether GDE gave information in compliance or purported compliance with s 43(1) of the Work Health and Safety Act 2011 (NSW) that it knew to be false or misleading in a material particular.' 'Whether GDE produced a document in compliance or purported compliance with s 43(1) of the Work Health and Safety Act 2011 (NSW) that it knew to be false or misleading in a material particular.' 'Whether Mr Khodr was acting on behalf of GDE or FSA when supervising and directing workers at the Umina Beach site.']

Ratio Decidendi

The prosecution did not prove all elements of the offences beyond reasonable doubt. The Court found that GDE engaged FSA, which held the Class A asbestos removal licence, for the friable asbestos removal work; that the information provided by Mr Khodr and the produced SafeWork notification were not proved to be false or misleading in a material particular known to Mr Khodr; and that when Mr Khodr supervised and directed workers on site he did so on behalf of FSA, which had nominated him as a supervisor, rather than on behalf of GDE. Any error in FSA nominating Mr Khodr as supervisor was not a breach by GDE.

Court Disposition

The prosecution has not proved all of the elements of the offences beyond reasonable doubt, but final orders were not entered pending the prosecution's opportunity to consider an application under s 5AE of the Criminal Appeal Act 1912 (NSW).

Orders

  • ['The prosecution has not proved all of the elements of the offences beyond reasonable doubt.' 'I will not enter final orders until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW).' 'I will list the matter on 6 November 2023 to determine the...