Australia, June 11 -- New South Wales Land and Environment Court issued text of the following judgement on May 12:

1. BALL JA: The applicant, Edstein Creative Pty Ltd, seeks leave pursuant to r 3.5(5) of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) to appeal out of time against the conviction, following a plea of guilty, and fine of $375,000 imposed on it by Strathdee DCJ on 17 May 2024 for an offence against s 32 of the Work Health and Safety Act 2011 (NSW) (the WHS Act) arising from a contravention of s 19(1) of the WHS Act (the Offence). Relevantly, s 19(1) of the WHS Act imposes an obligation on a person conducting a business to "ensure, so far as is reasonably practicable, the health and safety of ... workers engaged, or caused to be engaged by the person". Section 32 of the WHS Act relevantly provides:

Failure to comply with health and safety duty-Category 2

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.

...

2. "Health and safety duty" is defined in s 30 to include a duty imposed by s 19(1).

3. Section 232(1) of the WHS Act provides:

(1) Proceedings for an offence against this Act may be brought within the latest of the following periods to occur-

(a) within 2 years after the offence first comes to the notice of the regulator,

(b) within 1 year after a coronial report was made or a coronial inquiry or inquest ended, if it appeared from the report or the proceedings at the inquiry or inquest that an offence had been committed against this Act,

(c) if a WHS undertaking has been given in relation to the offence, within 6 months after-

(i) the WHS undertaking is contravened, or

(ii) it comes to the notice of the regulator that the WHS undertaking has been contravened, or

(iii) the regulator has agreed under section 221 to the withdrawal of the WHS undertaking.

4. The appeal raises two questions. The first is whether leave should be given to appeal out of time. The second is whether the circumstances warrant the conviction being set aside notwithstanding the plea of guilty. It is convenient to address the second of these questions first, since the answer to that question has a significant bearing on the answer to the first.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196b269021212b0c6366dc0f)

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