Prime Marble & Granite Pty Ltd v Safework NSW [2024] NSWCCA 105

Prime Marble & Granite Pty Ltd v Safework NSW [2024] NSWCCA 105

Notice of an offence under s 32 of the WHS Act is given when the regulator is aware that employees are exposed to a risk due to a failure to comply with a health and safety duty, regardless of whether the specific worker or resulting harm is identified. Since SafeWork had notice from the 2017 Workplace Hygiene Monitoring Report, the proceedings commenced in 2023 were out of time under s 232, and must be dismissed as an abuse of process.

Jurisdiction
Australia
Judgment Date
24 June 2024
Procedural Posture
Criminal Appeal / Appellate
Outcome
Appeal allowed. Orders of District Court vacated. Summonses dismissed as out of time.
Legal Topics
['limitation Periods' 'commencement of Prosecution' "interpretation of 'offence Comes to Notice'" 'workplace Exposure to Crystalline Silica' 'category 2 Offences Under WHS Act']
['employment and Industrial Law' 'work Health and Safety' 'criminal Law'] ['limitation Periods' 'commencement of Prosecution' "interpretation of 'offence Comes to Notice'" 'workplace Exposure to Crystalline Silica' 'category 2 Offences Under WHS Act']

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Procedural Posture

Criminal Appeal / Appellate

Legal Issues

  1. 1 ["When does an 'offence' under s 32 Work Health and Safety Act 2011 (NSW) first come to the regulator's notice for the purposes of the limitation period in s 232?" "Is identification of individual workers necessary for the offence to be 'noticed' by the regulator?" 'Whether risk must materialise for offence under s 32 to arise']

Ratio Decidendi

Notice of an offence under s 32 of the WHS Act is given when the regulator is aware that employees are exposed to a risk due to a failure to comply with a health and safety duty, regardless of whether the specific worker or resulting harm is identified. Since SafeWork had notice from the 2017 Workplace Hygiene Monitoring Report, the proceedings commenced in 2023 were out of time under s 232, and must be dismissed as an abuse of process.

Court Disposition

Appeal allowed. Orders of District Court vacated. Summonses dismissed as out of time.

Orders

  • ['Grant leave to appeal.' 'Allow the appeal.' 'Vacate the orders made in the District Court on 13 February 2024.' 'Order that summons 2023/103537 and summons 2023/103574 be dismissed.']